In this dramshop action, brought pursuant to MCL 436.22; MSA 18.993, defendant appeals as of right from the order denying its motion for a new trial. The action arose from the death of 19-year-old Colleen Burke. The jury had returned a verdict for $175,000 for Janet Burke (Colleen’s mother), $25,000 for Jeffrey Burke (Colleen’s brother), and $10,000 for the estate of Myles Burke III (Colleen’s father).
Defendant is the tavern where Colleen had spent the evening on the night of her death. Defendant’s policy at that time permitted 18, 19 and 20-year-olds to еnter the bar. To prevent minors from being served, the hands of those over 21 would be stamped. Colleen and the two who were with her, one of her brothers and a friend, were minors and none had their hands stamped. Nonetheless, all three were served alcohol. Testimony at trial was unclear as to how obviously drunk Colleen was while at the bar and upon leaving. On the way home she was so noisy in the car that her brother stopped the car on the road and had her exit from the cаr. When they tried to have Colleen re-enter the car, she refused and ran away. After a while they left the area without her, being unable to locate her. While walking home Colleen was struck by a car in a hit-and-run accident, which caused her death. On appeal defendant raises many allegations of error in the admission of evidence, in the awarding of attorney fees and costs, and in not granting its motion for a mistrial.
Defendant alleges that error occurred in permitting the jury to be told that a blood alcohol level of *687 .10% gives rise to a presumption of intoxication as that level is not applicable to civil actions. MCL 257.625a(l); MSA 9.2325(1) provides in pertinent part that:
"The amount of alcohol * * * in the driver’s blood * * * shall be admissible into evidence in a criminal prosecution * * (Emphasis supplied.)
While we agree that such standard is not applicable and that error occurred, we find this to be harmless error. GCR 1963, 529.1. In any event, as Colleen was already deceased at the time her blood sample was taken, her blood alcohol content was admissible.
Hubenschmidt v Schears,
Defendant contends that error occurred in the admission of Colleen’s blood test results because there was no testimony as to who transported the tube of blood from the autopsy room to the laboratory. However, our review of the record reveals that the blоod was hand-carried by one of three people and that the standard procedure was to have the blood hand-carried one flight of stairs. Defendant has not alleged that the blood was not Colleen’s or that the sample wаs in any way tampered with or even that an opportunity to
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tamper with the sample occurred. We believe the factors enumerated in
Gard v Michigan Produce Haulers,
Defendant contends that it was error for the trial judge to have granted plaintiffs a protective оrder which prevented defendant from discussing, in defendant’s opening statement, the possibility of Colleen’s having used marijuana on the night of her death. Defendant admitted that discovery had revealed no evidence of consumption of marijuana on that night, but it sought to produce evidence of decedent’s prior consumption of marijuana to establish a probable cause for her condition on the night in question. The trial court ruled that such evidence would be more prejudicial than probative under MRE 403 and granted the protective order. Such an evidentiary ruling is within the discretion of the trial judge.
Kovacs v Chesapeake & Ohio R Co,
Defendant also alleges that it was error to admit photographs of the deceased’s corpse and the scene of the accident. Defendant claims that the location *689 and manner of Colleen’s death were not in issue, however our review of the record reveals that defendant did contest the location of the body, and it was necessary for the plaintiffs to prove that Colleen’s intoxicated condition contributed to the accident. The trial court specifically found that the photographs were not so gruesome as to inflame a jury. Nor do we find the fact that the photographs of the accident scene were taken in the daylight rather than at night to have caused any possible prejudice to defendant.
"As with all evidence, thе admission of photographs on the grounds that they are more probative than prejudicial is within the discretion of the trial court. MRE 403; City of Grand Rapids v Assfy,44 Mich App 473 , 476;205 NW2d 502 (1973). It is clear from the record in this case that the trial court exercised its discretion in ruling the photographs аdmissible. We find no abuse in the exercise of that discretion since the photographs were calmly described by the plaintiff who does not appear to have created a dramatic scene in the courtroom upon viewing the photographs. Nor can we say that the photographs were completely irrelevant to any material issue of fact, such as damages suffered by plaintiff. We find no error. See Amedeo v Grand Rapids & Indiana R Co,215 Mich 37 , 55;183 NW 929 (1921); Carreras v Honeggers & Co, Inc,68 Mich App 716 , 724-725;244 NW2d 10 (1976).” Kovacs, supra, pp 537-538.
Defendant next assigns error in the trial court’s allowing рlaintiffs to state that defendant violated the Michigan Constitution by serving alcohol to a minor, when the suit was under the dramshop act. We find no error. The constitution provides the basis for the dramshop act, which is a remedy. It is the constitution that rendеrs the sales to minors unlawful. See Const 1963, art 4, § 40.
The next complaint defendant presents is that it was entitled to summary judgment as the intoxi
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cated person was not named and retained as required by the statute. In the instant case the intoxicated persоn was deceased, and the plaintiffs are close family members. In
Newman v Hoholik,
"Nowhere in the Putney opinion does the Supreme Court expressly or impliedly suggest that the name and retain requirement admits of no exception. To the contrary, the Court affirms the continuing viability of Salas v Clements, [399 Mich 103 ;247 NW2d 889 (1976)] supra, both in terms of the specific exception recognized in Salas and the underlying rationale that the 'name and retain’ provision should not be construed to produce an 'unreasonable, unjust result’ in light of the purpose of the provision. Putney, supra, pp 186, 190.
"Conspicuously absent from the Putney opinion is any reference to Scholten [v Rhodes,67 Mich App 736 ;242 NW2d 509 (1976)], supra, Dickerson [v Heide,69 Mich App 303 ;244 NW2d 459 (1976)], supra, or Schutz [v Murphy,99 Mich App 386 ;297 NW2d 676 (1980)], supra. We find no indication in Putney that the Supreme Court impliedly abrogated the holdings in those oрinions. Instead, the Court’s seemingly deliberate use of narrow language, express affirmance of Salas, supra, and omission of any reference to Scholten or its progeny, convince us that Scholten is still 'good law’. And since, in our opinion, it is, indeed, a good and sensible law which permits an injured person to maintain a dramshop action without naming аnd retaining as a party defendant a close family member against whom the plaintiff has no cause of action, we hold that John E. Newman was not required to name and retain his father in order to maintain his action against the defendants Hohоlik.” Newman, supra, p 72. (Footnote omitted.)
Defendant cites
Moran v McNew,
134 Mich App
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764, 766;
Defendant next alleges that the trial court erred in its refusal to grant it a directеd verdict. We do not agree. We believe the evidence presented a question upon which reasonable minds could differ and was properly given to the jury to decide.
Rushing v Wayne County,
Additionally we find no error in the trial court’s denial of defendant’s motion for a mistrial after certain statements were made by plaintiff’s counsel during voir dire. We agree that it was improper to refer to other businesses that defendant may own, however, we do not find this to be reversible error. In the instant case, as in
Hill v Husky Briquetting, Inc,
Defendant objects to the award of attorney fees and costs, asserting that they were imposed as a result of a mediation awаrd and that since that time the parties have changed. Our review of the record reveals that the change of parties was to replace Colleen’s father with the personal representative of his estate due to his deаth, and that plaintiffs voluntarily dismissed Colleen’s brother who purchased her drinks on the night of her *692 death. This brother was a party to the mediation but not at trial.
We find that these changes were to defendant’s benefit. Colleen’s father’s damages ceasеd as of the date of his death and there was one less plaintiff due to the brother’s dismissal from the suit. Defendant’s argument is one of form over substance and we find no error. The monies were awarded as provided under GCR 1963, 316.7.
Defendant also objects to the amount awarded for attorney fees and costs pursuant to GCR 1963, 316.7, which was $17,750 for fees and $1,587.65 in costs. GCR 1963, 316.8 provides that:
".8 Actual Costs. Actual costs include those costs taxable in any civil action and a reasonable attorney fee as determined by the trial judge for services necessitated by the rejection of the panel’s evaluation.”
Defendant is correct in its assertion that it should not be held liable for plaintiffs’ attorney’s unduly wasteful or grossly inefficient use of time.
Maple Hill Apartment Co v Stine,
"We adopt the guidelines for determining 'reasonableness’ set forth in Crawley v Schick,48 Mich App 728 , 737;211 NW2d 217 (1973).
"The Crawley panel noted that there is no precise formula for computing the reasonableness of an attorney’s fee, but said that factors to be considered are:
*693 " '(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. See generally 3 Michigan Law & Practice, Attorneys and Counselors, § 44, p 275, and Disciplinary Rule 2-106(B) of the Code of Professional Responsibility and Ethics.’ ”
"While a trial court should consider the guidelines of Crawley, it is not limited to those fаctors in making its determination. Further, the trial court need not detail its findings as to each specific factor considered. The award will be upheld unless it appears upon appellate review that the trial court’s finding on the 'reasonableness’ issue was an abuse of discretion.”
On review, we do not find that the fees were excessive as the fees are approximately 10 percent of the award, the case is complex, detailed and difficult thereby requiring largе amounts of time and the fees were reduced to the average price in that geographical area. We do not find this case to rise to the level of Petterman, supra, where the fees were 75 percent of the amount of the award, nоr has defendant alleged that any unnecessary delays were caused by plaintiffs as occurred in Maple Hill, supra. Additionally, defendant did not request an evidentiary hearing on the fees at trial. Accordingly, we find no error.
Neither do we find fault with the award of costs. See
Issa v Garlinghouse,
Accordingly, the trial court’s decision is affirmed.
Affirmed. Costs to appellees.