This is аn appeal, upon leave granted by this Court, by plaintiffs, Leonard and Magalene De Villez, from an order of the circuit court for the county of Wayne, dismissing plaintiffs’ second count of a two count complaint, against defendant, Anthony Schifano, doing business as the Happy Bar.
The faсts are properly stated in plaintiffs’ brief on appeal, vis.:
“The plaintiff Leonard De Villez claims to have been assaulted by one Lonnie Maynard while lawfully upon the premises of the defendant on July 26, 1968. On September 18, 1968, the plaintiff, together with his wife, brought suit against the defendant for injuries and damages allegedly resulting from the assault. Plaintiffs’ complaint contains two counts, the first alleging an unlawful sale of intoxicants to the said Lonnie Maynard which was a proximate *74 cause of the assault and the second alleging a violation of the defendant’s common-law duty to maintain his premisеs in a reasonably safe condition for business invitees, also a proximate cause of the assault.
“On November 8, 1968, the defendant brought on for hеaring a motion to dismiss count two of plaintiffs’ complaint on the basis that the plaintiffs’ sole remedy is under the dramshop act 1 and that the exertion [sic] of the common-law negligence action is improper. The plaintiffs filed an answer to defendant’s motion alleging that the common-lаw negligence count was properly brought and joined with the dramshop action under Michigan law.
“On December 17, 1968, an order was entered by the trial court dismissing count two of plaintiffs’ complaint, the court being of the opinion that it must be guided by the decision of
Kangas
v.
Suchorski
(1964),
Two issues are presented on this appeal:
1. Whether the remedy of a patron at a bar against the bar owner for injuries suffered from an assault by a fellow patron is limited to an action under the dramshop act?
2. Whether a patron of a bar may join a count based on negligence which is recognized in the common law as a valid cause of action to a count based on the dramshop act?
We deem these issues can be best dealt with together, and we therefore proceed оn this basis.
There can be no question but that an action
based on an unlawful sale of intoxicants
must be brought under the dramshop act, because the action is a creature of statute, not recognized in the common law as a vаlid cause of action.
Jones
v.
Bourrie
(1963),
*75
It is likewise true that the development of the common law has recognized, on the basis of principles of master and servant relationship and safe premises for business invitees, liability on the part of tavern owners for the violation of certain duties owed to their customers. Included is the right to recover for injuries resulting from the failure of a tavern owner to exercise reasonable care to provide safe premises for his customers. 45 Am Jur 2d, Intoxicating Liquors, §§ 553-557, pp 852-857.
Gorby
v.
Yeomans
(1966),
The allegations of count two of plaintiffs’ complaint in the instant cаse pleaded an action squarely within the guidelines set out in Gorby, supra, and without reference to an unlawful sale of intoxicants.
The defendant cites three Supreme Court decisions in support of his position that plaintiffs’ second count must fall. Plaintiffs assert in regard to these cases the following: “The cases dealing with the exclusiveness of the remedy havе all involved attempts to avoid the lack of one of the prerequisites to recover under the statute by alleging a common-law cause of action. See for example
Jones
v.
Bourrie
(1963),
We note that the Kangas case, supra, involved an appeal after trial by jury which found for the defendant tavern owner. The facts are stated in the opinion, pр 398, 399. 2 These facts established that *76 plaintiff was not an innocent person, and that his cause of action was based on the dramshop act, including an unlawful sale. No proofs were offered by plaintiff to show facts to justify a count based upon common-law negligence.
In the recent case of
Baker
v.
Golematis
(1969),
“Defendant argues that the dramshop aсt provides an exclusive remedy, and thus a companion allegation of common-law negligence is improper.
Holland
v.
Eaton
(1964),
“The Holland decision and thе language cited therefrom by defendant concerned the narrow question of whether suits under the dramshop act are excluded from aрplication' of the savings provisions of the general statutes of limitations. Hence, Holland’s language of exclusive remedy does not support or establish the principle that there is an exclusive remedy under the dramshop act in all barroom *77 brawls. The Kcmgas decision also contains language аpparently referring to a dramshop exclusive remedy principle, but the case cited therein also concerned a statute оf limitations problem. Thus, neither case cited by defendant supports his position.
“There is no rule that a claim for damages under the dramshop аct cannot be brought with a companion action alleging liability for negligence arising out of the same facts. In fact, a bar owner is subject to much more liability for injury to his patrons than that encompassed by the dramshop act for sale of alcoholic beverages to intoxicated persons.
Gorby
v.
Yeomans
(1966),
We hold that the dramshop act affords the exclusive remedy fоr injuries arising out of an
unlawful sale, giving away,
or
furnishing of intoxicants. King
v.
Partridge
(1968),
Reversed. Costs to plaintiffs.
Notes
MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993).
“The testimony shows that plaintiff and defendant Exelby drank together in defendant Suehorski’s bar. After Exelby had become in *76 toxieated. Suehorski served him further intoxicants. Plaintiff matched coins with Exelby to determine who was to pay for drinks. Some of the drinks served to Exelby after plaintiff knew that Exelby had become intoxicated were paid for by plaintiff and some for both of them were paid for by Exelby. A dispute arose between them as to whether plaintiff owed Exelby for some of the drinks. Exelby then struck plaintiff, causing the damage for whieh this suit was brought. Because plaintiff paid for some of the beer furnished Exelby while in an intoxicated condition, both courts below held he was not an innocent third party and, therefore, not entitled to recover from the bar owner or his surety under the statute in question.
“Plaintiff stresses that the statute forbids the sale of liquor to an intoxicated person and imposes civil liability upon the retailer for injuries resulting to any person by reason of such selling. He denies that the right to such recovery is limited by the statute to plaintiffs who are ‘innocent persons’.”