Robertson v. Devereaux

188 N.W.2d 209, 32 Mich. App. 85, 1971 Mich. App. LEXIS 1842

• Court: Michigan Court of Appeals
• Decided: March 29, 1971
• Docket: Docket 7557
• Status: Published

Opinions

Levin, J.

Steven Robertson, 16 years of age, was killed when an automobile in wbicb he was riding as a passenger collided with another automobile. His mother, Irma A. Robertson, as executrix of his estate, commenced this action against a beer and wine licensee, Sam Y, Inc., and against Daniel G. Devereaux, the driver, and Stewart G. Phillips, the owner of the automobile in which Steven was riding.

The issues raised on this appeal concern only plaintiff’s claim against Sam Y. The complaint alleges that Sam Y made illegal sales of beer to Devereaux, who was a minor, that Devereaux became intoxicated, and that he drove the automobile in a grossly negligent manner. The plaintiff claims that Sam Y is liable under the dramshop act* ¹ “for all damages pleaded for the death of Steven Bobertson”.²

The trial court granted Sam Y’s summary judgment motion on the ground that the personal representative of a deceased person is not a proper party plaintiff under the dramshop act.

The trial court and Justice O’Hara are of the view that decision in this case is controlled by the statement of our Supreme Court in Genesee Merchants Bank & Trust Company v. Bourrie (1965), 375 Mich 383, 389, that “under the dramshop act the personal representative of the decedent is not a proper party plaintiff.”

We read Bourrie differently. There the Supreme Court held that the survivors of Duane B. Owings, the deceased person who had become intoxicated in the defendant taverns and while in that condition was killed in an automobile accident, could not maintain an action for their loss against the taverns under the wrongful death act. Their remedy, said the Court, was the special remedy provided in the dramshop act. Bourrie also holds that survivors and dependents can only assert their claims under the dramshop act in their own names, not through a personal representative of the deceased person.³

In the instant case the claim is not advanced on account of damages suffered by survivors or dependents, but in the interest of the injured person himself for the damages he himself suffered. If Steven Robertson had only been maimed he clearly would have a right to maintain an action for the damages he suffered. His death does not prevent a personal representative from advancing Steven’s claim to recover for the damages he suffered. Steven’s cause of action survives under an express provision of the dramshop act. The act provides in crystal-clear language:

“In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator.”3 ⁴

In Plowman v. Satkowiak (1970), 22 Mich App 425, 428, on parallel facts, another panel of onr Court construed the quoted provision to permit the personal representative of an injured person who died to advance a claim under the dramshop act.⁵

The appellate division for the fourth department, New York Supreme Court, ruled similarly in construing the New York dramshop act, which is substantially identical to our act; the clause concerning survival of actions is identical to ours.* ****⁶ Bator v. Barry (1953), 282 App Div 324, 326 (122 NYS2d 604). The New York Court declared that the statutory language was so plain and clear, “it is difficult to understand the theory upon which the defendant seeks a reversal of the order” of the trial court denying defendant’s motion to dismiss the complaint.

In Zucker v. Vogt (CA2, 1964), 329 F2d 426, the United States Court of Appeals for the Second Circuit, in construing the Connecticut dramshop act, reached the same result even though the Connecticut act does not expressly provide for the survival of actions; the Court relied on Connecticut’s general survival of actions statute.⁷ Similarly, see Wendelin v. Russell (1966), 259 Iowa 1152 (147 NW2d 188).

The Bourrie rule serves well in the factual context there presented. A wrongful death action may be maintained only if the decedent could have recovered in his own name. Frequently, as in Bourrie, the deceased person was himself intoxicated at the time he suffered physical injuries and cannot recover because of his own fault; under the dramshop act his dependents may, nevertheless, recover even though the decedent upon whom they are dependent was intoxicated or at fault. Under the wrongful death act, the plaintiff must prove that the defendant was at fault; under the dramshop act, there is no need to prove that a defendant tavern owner was at fault, only an unlawful sale causally related to plaintiff’s loss.

The statement in Bourrie that “under the dramshop act the personal representative of the decedent is not a proper party plaintiff” refers to an action by dependents seeking to enforce their claim for loss of means of support. In making that statement, the Court did not address itself to any factual situation other than the one before it. The Conrt did not focns on the claim of a non-dependent seeking to recover for physical injury to his person or property. Clearly, a person physically injured by an intoxicated person as a result of an unlawful sale has a claim under the dramshop act, and just as clearly under the express language of the act the action survives even if the claimant should die.

There is a substantial question regarding the amount of damages the plaintiff may recover. It appears that Steven Bobertson died immediately upon or shortly after the accident.* *⁸ The briefs do not discuss the damage question and we intimate no opinion,⁹ except that Steven’s claim which survived would not include damages for “the loss of services to his parents and the loss of his love and companionship” which were among the items of damage alleged in the complaint (see footnote 2).

Beversed and remanded for trial. Costs to plaintiff.

1 MCLA § 463.22 (Stat Ann 1970 Cum Supp § 18.993). See fn 4 for text.

Alternatively to the principal issue (plaintiff's standing to maintain this action), Sam Y contends that the summary judgment in its favor should be affirmed because Steven Robertson was not an innocent party. It is alleged that Steven was one of a group of four under-age high school boys who contrived a plan to obtain a case of beer one evening while they were driving around the city and that Steven was one of the boys who executed the plan and drank the beer.

Our disposition of this ease makes it unnecessary for us to consider and decide whether the distinction in the dramshop act eases between innocents and non-innocents has any application to a 16-year-old boy. What little there is in the record does not factually support a summary judgment on the alternative ground.

A toxicologist in the Wayne County medical examiner’s office was deposed, and he testified that he found no trace of alcohol upon an examination of the body of Steven Roberts on.

It does appear from the depositions that Steven was one of three boys riding around as passengers in Devereaux’s car, but this alone would not support the view that he was part of an illegal “conspiracy” to order and drink beer or that he participated in the fruits of the conspiracy. True, Harold Primak, a part-time delivery boy for Sam Y and a classmate of the four boys, testified on deposition that “they all chipped in”. However, he was then asked, “How do you know that?”, to which he responded, “Well they wouldn’t be arguing, you know, who would pay or anything like that, unless, you know, one guy must not have had enough, or something like that”. We think it obvious that Primak was guessing and that this testimony would not support a summary judgment based on a finding that there is not a genuine issue of fact as to whether Steven Robertson was innocent.

2 The complaint alleges that it is an action “for the personal injuries suffered by Steven Robertson, for pain which he suffered to his ultimate death, funeral expenses, burial expenses, the loss of service to his parents, and the loss of his love and companionship”.

3 “The only proper posture for this case would have involved the injured parties (for instance, the widow and the guardian of the children of deceased) suing defendants under the dramshop act.” Genesee Merchants Bank & Trust Company v. Bourrie (1965), 375 Mich 383, 390.

4 The full text of the dramshop act reads:

“Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and in any action provided for in this section, the plaintiff shall have the right to recover actual and exemplary damages in such sum not less than $50.00 in each case as the court or jury may determine, but no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife or parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife or parent and child shall be his or her sole and separate property. Such damages together with the costs of suit shall be recovered in an action of trespass on the case before any court of competent jurisdiction; and in any case where the parent shall be entitled to any such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other. The bond required by this act shall continue from year to year unless sooner cancelled by the surety. No surety shall cancel any bond except upon 10 days’ written notice to the commission.” MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993).

5 In Plowman we considered Bourrie and the provision in the dramshop act expressly providing for the survival of the claim in the event of the death of “either party” (see fn 4 and accompanying text for the language of this provision), and held that the administratrix of the estate of a deceased minor, to whom a tavern owner had made an unlawful sale of intoxicating beverages, may maintain an action under the dramshop act against the tavern owner.

6 The New York statute does contain some additional language underlined below, viz.:

“Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, * * * .” The underlined words would appear to modify “by reason of the intoxication of any person”, not “any person who shall be injured”; the death referred to being that of the intoxicated person rather than of the injured person. In any event, the New York Court did not rely on the underlined words but on the survival clause in holding that an action could be maintained under the dramshop act by the administrator of a person injured by an intoxicated person who died enroute to the hospital shortly after an automobile collision.

7 The policy that actions shall survive has been made universally applicable to all actions and claims in the revised judicature act. It provides: “All actions and claims survive death”. MOLA § 600-.2921 (Stat Ann 1962 Rev § 27A.2921). This all-embraeive language replaced the provision in the Judicature Act of 1915 which provided for survival of only certain kinds of actions! See committee comment reprinted as annotation, 33 MOLA, p 730; 22 Stat Ann, p 129.

8 cf. Nelson v. Glover (1925), 231 Mich 229; Micks v. Norton (1931), 256 Mich 308; In re Beiersdorfer’s Estate (1941), 297 Mich 592.

9 In Michigan, where personal injuries cause death the action must be prosecuted under the wrongful death act and may not be continued, even if the action is commenced during the lifetime of the injured plaintiff, after his death under the survival act (MCLA §§ 600.2921, 600.2922 [State Ann 1962 Rev § 27A.2921, 1970 Cum Supp § 27A.2922] ).

But this limitation does not control where the claim arises under the dramshop act which has its own special survival provision. Cf. Genesee Merchants Bank & Trust Company v. Bourrie, supra.

This limitation in the survival and death acts serves to avoid redundancy in the damages awarded under the survival and death acts. In applying the dramshop act the objectives of awarding full compensation and avoiding redundancy will, no doubt, be accomplished by judicial construction; principles developed in like situations may be relevant: McCormick, Damages, § 94, p 337, et seq.-, Prosser, Law of Torts (3d ed), § 121, p 928, et seq.-, authorities cited in Speiser, Recovery for Wrongful Death, § 14.4, fn 14, et seq.