Heyler v. Dixon

130 130 HEYLER v DIXON 13, 1987, January at Detroit. Docket Nos. 88268. Submitted denied, 8, 1987. appeal May —. Decided Leave Dixon, 10, 1980, Larry a.m., February approximately 2:18 at On father, Dixon, belonging driving to his Paul west- a vehicle Heights, control of on Born Road in Dearborn lost bound Van post. vehicles involved in the car and hit a There were no other Heyler, age twenty-two, passenger Ann the accident. Barbara vehicle, injuries was killed as a result of she sustained girlfriend and the accident. Barbara was the live-in of Dixon two, Stacy Heyler, age they daughter, Ann who lived had a Larry Lounge to the Confetti about with them. Barbara drove p.m. 9, 1980, February 9:00 and left him there. About noon on Lounge joined to the Confetti where she Barbara drove back nothing Larry Barbara had to drink but and several friends. Larry which was served to him. from time to time drank beer Lounge approximately Larry left the Confetti at and Barbara 10, 1980, February proceeded westerly on a.m., 2:10 and Van driving sitting Larry in the front Born Road with and Barbara approximately occurred at 2:18 seat beside him. The accident 7, 1980, personal representative May Heyler, a.m. On Harold Wayne daughter, Heyler, in the Circuit Court his Barbara filed Dixon, wrongful against Larry death action for References 2d, Am Death 275. § Jur 2d, 265, 1091. Am Jur Evidence §§ 24, 25, 33-35, 2d, Expert Opinion Am Jur and Evidence §§ 2d, Intoxicating Liquors Am 561-614. §§ Jur 2d, seq. Am Jur Trial et §§ application 701 of Federal Rules of Construction and of Rule Evidence, providing opinion testimony by lay under for witnesses circumstances. 44 ALR Fed 919. certain patron person’s Tavernkeeper’s liability to for third assault. 43 ALR4th 281. negligence Comparative three more rule where misconduct of or persons 8 ALR3d 722. is involved. wrongful damages. Recovery prejudgment death interest ALR2d 1104. directly injury person with or release of liable Settlement damage releasing liability act. 78 ALR2d 998. death as under civil owner, driver, Dixon, Stevens, doing Paul car and John busi- Lounge. alleged complaint ness as the Confetti that dece- solely which dent was killed an automobile collision negligent driving Dixon, proximately Larry caused intoxicating beverages Dixon was served at the Lounge visibly in Confetti while he was a intoxicated condition. 6, 1981, Larry settlement reached On March was with settlement, part agreed Paul Dixon. As of the it was Larry Dixon would be retained as a nominal defendant in the against comply in to action defendant John Stevens order with dramshop provision Septem- retain of the act. the name and On 28, 1982, Michigan Supreme opinion the Court issued its in ber Haskins, (1982), stating Putney v 414 Mich 181 that a case against dramshop defendant must be dismissed if a settle- any type plaintiff ment of has been entered into between the 19, 1982, allegedly person. and the intoxicated On October summary judgment defendant Stevens moved for on the basis Putney response plaintiff of the decision. In moved to set aside agreement the settlement entered into March On 4, 1982, November this case was taken off the docket and abeyance pending ruling by decision on the motions was held in Supreme Putney applicable the Court on whether was retroac- 6, 1984, tively. February Supreme On the Court ruled Tebo v Havlik, ruling Putney 418 Mich 350 that its would be prospective only, saving plaintiffs thereby cause of action However, against period, Stevens. in the interim the Chief Judge Wayne dramshop of the Circuit Court had taken all involving cases this issue off the trial docket. After the Su- Tebo, indicating preme opinion in Court issued its given prospective application Putney only, decision to be was proceeded the instant case was returned to the trial docket and 20, 1984, jury separate to trial. returned On November $175,000 against Larry verdicts Dixon in the amount of $175,000. against jury Stevens in the amount of The also found percent comparatively negligent the decedent to be fifteen but only applied percent Larry the fifteen Dixon and not to Brennan, J., court, defendant Stevens. The Thomas J. entered $149,000 against judgment Stevens in the amount of and de- prejudgment period nied interest for the of time the case was appealed. Heyler appealed. off the trial docket. Stevens appeals by Appeals. were consolidated the Court of Appeals The Court of held: question it error to 1. The whether or not was allow party to call Dixon as a witness under the adverse Further, preserved by objection. appeal an statute was not harmless, testimony error, was not it since his if even justice. harmless that It was also with substantial inconsistent signed by Larry Dixon. a written statement the court admitted person allegedly who is intoxicated 2. The rule that an dramshop action a tavern in a named as a defendant meaning of the retained in the action within owner is not dramshop any kind is reached act where a settlement of person plaintiif intoxicated before the and the between settlement, litigation that at time a trial or is concluded plaintiif and the intoxicated settlement is made between dismissed, person must be the action the tavern owner allegedly defendant intoxicated and that the fact that formally party and is not dismissed continues as a nominal satisfy and retain sufficient to the name from the action is applies requirements settlement act to actions where the of the 28, 1982, September the date the rule into after was entered Thus, Supreme was not Court. Stevens was announced disposition plaintiif summary for failure of the entitled to provision comply the name and retain of the with act. denying defendant Stevens’ 3. The court did not err from a directed verdict since there was evidence motion for Larry intoxi- inferred that Dixon was served which it could be Lounge visibly while he was intoxicated. cants at the Confetti failing testimony to limit the of 4. The court did not err allowing lay them to ex- witnesses to their observations but visibly opinions press Dixon was their as to whether intoxicated. limiting scope inquiry of into did not err in the 5. The court support support Stacy Heyler, Ann since her

the care and damages. not an element of was liability keeping of each trial court did not err in the 6. The joint separate rather than and several. defendant denying prejudgment interest for 7. The court did not err in period the of time the case was removed from trial docket. the comparative negli- applying 8. The trial court did not err against gence the verdict both defendants. to Affirmed. Maher, P.J., part. would have held the R. M-. dissented in He joint liability He would of Dixon and Stevens to be several. part. reverse Dramshop — — Intoxicating Liquors Act Name and Retain. 1. allegedly person who is named as a an intoxicated The rule that dramshop is not action a tavern owner defendant in a meaning dramshop retained in within the action the of the act any plaintiff a where settlement of kind is reached between the litigation person by and the intoxicated before the is concluded settlement, trial or that at the time a is made settlement plaintiff person between the and the intoxicated action dismissed, the tavern owner must be and that the fact allegedly intoxicated defendant a continues as nominal party formally and is not from the is dismissed action insuffi- satisfy requirements cient to the name and retain of the act applies to actions where the settlement was into entered after 28, 1982, September by the date the rule was announced (MCL 18.993). Supreme 436.22; Court MSA Intoxicating Dramshop — — 2. Liquors Act Actions. act, dramshop to an order maintain action under the a (1) plaintiff prove: injured damaged must or (2) visibly person; intoxicated that the defendant unlaw- sold, gave fully intoxicating liquor person; or furnished to such (3) giving selling, furnishing that such or caused or contributed (4) persons; selling, to the intoxication such that such giving furnishing proximate plaintiff’s was a cause of the 11-3). (SJI2d, 11, Introduction, injury p § Appeal Judgment — — Notwithstanding 3. Directed Verdict Verdict. applicable standard review denial of to a a motion for a Appeals directed verdict is that review the Court of is party opposing limited whether the motion offered upon differ; evidence which reasonable minds could the test is whether, viewing light facts in a most favorable nonmoving party, persons reasonable could reach a different and, so, properly jury; conclusion if the case is one for the nonmoving party given every must be the benefit of reasonable inference that can drawn from the evidence. Intoxicating — — — Liquors Visible Intoxication Evidence Dramshop Act. alleged

The mere fact that an intoxicated tortfeasor drank alco- beverages visibly holic is sufficient to establish that he was purposes finding liability intoxicated for under the person act; visibly intoxicated his or when her intoxication apparent ordinary be would to an observer. Intoxicating Dramshop — — Liquors 5. Act Circumstantial Evi- dence. dramshop proved may by An action under the act be circumstan- tial evidence. op Opinion the Court op Lay — Opinion — — Rules Evidence. Witnesses 6. Evidence 1) opinions may testify are lay form of which A witness 2) helpful perception rationally of the witness and based on understanding testimony the determination of his to a clear 701). (MRE of a fact in issue Delay. Prejudgment — Judgments — — 7. Interest Interest periods delay prejudgment for may interest disallow A court (MCL through delay no fault of the debtor is caused where the 27A.6013). 600.6013; MSA Compara- — Dramshop — Intoxicating — Liquors Act Defenses Negligence. tive Comparative negligence available to is a defense which is factual defen- to intoxicated driver defendants as well as support it. dants where facts Mason, P.C. John W. (by W. Law Offices John Mason), plaintiff. for Kallas), for Constantine N. (by Henk

Kallas & John Stevens. Shepherd Maher, P.J., and and R. M.

Before: Allen,* JJ. G. S. death Allen, wrongful J. this S. action

G. car in which the driver of the brought against tavern passenger decedent was he was the driver while allegedly served which intoxicated, in Docket defendant Stevens visibly in Docket No. and plaintiff No. October, 1985, right from an as of appeal pursuant trial by the court judgment entered Dixon, against Larry jury verdicts returned $175,000 driver, in the amount Stevens, Lounge, as doing business Confetti John $175,000, each award in the amount percent jury-deter- fifteen decedent’s reduced * sitting Appeals by judge, Appeals on the Court of Former Court of assignment. Heyler v Dixon comparative negligence. mined By order this appeals Court the were consolidated. 10, 1980,

On at February approximately 2:18 a.m., Dixon, Larry driving a belonging vehicle father, Dixon, his Paul westbound Van Born Heights, Road in Dearborn lost control car and hit a post. There no were other vehicles involved Heyler, accident. Barbara Ann age a twenty-two, passenger vehicle, in the was killed as a result of injuries she in the sustained acci- dent. girlfriend Barbara was the live-in of Dixon and had daughter, Stacy Ann they Heyler, age two, lived who with them. Dixon left had a.m., Lounge Confetti at approximately 2:10 only minutes before the accident occurred.

Barbara had driven to the Larry Confetti Lounge 9, on February about noon 1980. After at leaving Larry lounge Barbara drove to her mother’s home where she remained during the car day. The driving Barbara was was owned by father, Larry’s Dixon, had who loaned the Paul p.m. to Larry. vehicle About 9:00 Barbara drove the car back to the Confetti Lounge where she joined Larry and several friends. Barbara had nothing drink from but time to time Larry drank beer which was to him. Larry served Barbara left the Confetti at Lounge approximately a.m., 10, 2:10 1980, February proceeded west- erly on Van Born Road with Larry driving and Barbara sitting the front seat beside him. The accident occurred at approximately 2:18 a.m.

In a proceeding, criminal Dixon Larry was charged 28, manslaughter. with February On meeting at a held in Dixon’s criminal attorney’s office, Dixon, his attorney, with and counsel for plaintiff Harold Heyler present, signed statement written counsel Heyler. rele- vant part the statement read: [May- Opinion op the Court George the date 2/ Dixon. On My name Lounge on I Confetti was at the and 2/10/80

9/80 Heights. in Dearborn Pelham Rd 5:pm. I the bar left at I there 2/9/80 [sic] arrived am on 2/10/80. 1:30 at during time I an hour beers I had one I number. know the exact I do not there. persons Several myself. drinks I had bought all the serving me. were high. feeling I I left the bar I was before Just stagger- slurred. I was not speech was my

believe at talking anyone to who worked ing. I don’t recall with a I last served just before I left. was the bar recall, drink, last hour I within the as as can best I in the bar. that was during I last served I feel that’s when was I evening, of the amount my recollection based drink, my high how I felt and fact

had to person I to a would speech was slurred sober visibly intoxicated. appear was re- manslaughter charge Ultimately placed Dixon was homicide and negligent duced probation. years’ on two 1980, personal repre- 7, Heyler, Harold May

On filed a Heyler, Barbara daughter, of his sentative Larry wrongful for death dramshop action Dixon, owner, driver, and John Dixon, Paul car Lounge. The Stevens, as Confetti doing business in decedent was killed an alleged that complaint proxi- and solely which was automobile collision negligent driving Larry caused mately Dixon, served intoxicat- Larry and that in intoxicated visibly he was beverages while ing to MCL contrary Lounge, at the Confetti condition seq. 18.993 et et seq.; were Defendants MSA 436.22 $1,000,000. severally jointly sued 6, 1981, with defendants settlement March On in the Dixon was reached Dixon and Paul settlement, it was $47,500. As of the part sum Opinion op the Court agreed that Larry Dixon would be as retained nominal defendant the action against defendant John Stevens in order with comply name and retain provisions act set as Alexander, Buxton v forth and defined 69 Mich 507; (1976), 245 NW2d 111 lv den 399 Mich (1977). 28, 1982, September On Michigan Supreme Haskins, v opinion Court issued its Putney 181; (1982), 324 NW2d 729 den reh overruling Buxton v Alexander stating a case a dramshop defendant must if be dismissed a settlement any has type been entered into between the plaintiff and the allegedly person. 19, 1982, intoxicated On October defendant Stevens for summary judgment moved on the basis of the Putney decision. In response plaintiff moved to set agree- aside the settlement 6, ment entered into March 1981. On November 1982, this case was off taken the docket and deci- sion on the motions in abeyance was held pending ruling by Supreme the Putney Court on whether applicable retroactively. 6, 1984,

On February Supreme the Court ruled Havlik, in Tebo v 418 350; Mich 343 181 NW2d (1984), reh 419 den Mich 1201 its Putney in ruling prospective would be only, thereby saving plaintiffs cause of action against permitted Stevens as Buxton v this Court in Alexander, However, supra. interim period,1 the the Chief of the Judge Wayne Circuit Court took all dramshop involving cases this off trial issue the Supreme docket. After the Court opinion issued its Tebo, indicating the to decision was given prospective application the instant case only, 1 11, period For further of the interim see discussion Issue Docket 88268, No. infra. 130 to proceeded and to the trial docket

was returned 19, trial March 1984, 20, sepa- the returned jury November

On in the amount of Dixon against Larry rate verdicts the $175,000 amount against Stevens $175,000. found the decedent to be also jury negligent only but percent comparatively fifteen and not percent fifteen applied the on dis- Following hearing Stevens. defendant con- and Stevens agreement between during run should cerning whether interest whether period stay sixteen-month $175,000 against defendant Stevens judgment the trial percent, fifteen should be reduced 1985, against judgment court entered October $149,000 ($175,000 percent) less fifteen Stevens for from the date of interest thereon and awarded removed by the matter was filing period minus trial docket. Interest chief from the judge Stevens, computed, so against as judgment $2,474.08 per month. accumulating at the rate of Stevens so entered judgment From the defen- In Docket No. 88169 parties appeal. both of error. raising five claims appeals dant Stevens should have According judgment to Stevens no lounge. Docket No. issued been three asserting plaintiff Heyler. appeals was insufficient. grounds judgment why

DOCKET NO. (1) ALLOWING I. THE TRIAL COURT ERRED IN WHETHER A LARRY AS WITNESS ON TO CALL DIXON PLAINTIFF (2) INTO BEHALF AND IN ALLOWING EVI- PLAINTIFF’S BY FOR PLAIN- A WRITTEN COUNSEL DENCE STATEMENT BY LARRY DIXON. TIFF AND SIGNED for defendant from counsel objection Without Heyler v Dixon Opinion op the Court Stevens, plaintiff called Larry as a witness plaintiff for under statute, adverse party MCL 600.2161; MSA 27A.2161. Stevens contends this was error because Dixon had plaintiff settled with March, 1981, $47,500 and, for additionally, since principal of the beneficiary decedent’s estate is Stacy Heyler, Dixon’s Larry daughter, the inter- ests of plaintiff Dixon and are substantially simi- lar. In Wilson v W A Foote Memorial Hospital, 90, 100; Mich App 284 NW2d 126 our Court that, held where defendant doctors had settled trial, with prior "the trial judge prop- ruled that erly purposes for of cross-examination were not parties adverse to the plain- [the doctors] However, tiff.” unlike the situation in the instant case, defendant objected there proposed cross-examination under the statute. Here no ob- jection was made to the questioning of the witness until attempted counsel to admit the written state- signed ment by Dixon. A defendant may the first time on appeal allege as error improper questions on cross-examintion. People Lyles, v (1986). App 583; 385 NW2d 676

Further, assuming, arguendo, trial erred, court we find the error harmless. In view of Earles, of Theresa testimony present who was with Dixon and decedent at the Confetti Lounge and who testified that she did not want decedent to leave with Dixon because he was and, visibly intoxicated in view of the testimony of the two officers who arrived at the scene of the accident and intoxicated, found Dixon visibly we are unable to conclude that Dixon’s statements had an impact on the jury any more than the testimony given similar other witnesses. Accordingly, we conclude that Dixon’s testimony on cross-examination under the statute was not 160 op Opinion the Court justice. MCR substantial with

inconsistent 2.613(A). argues that, Court even if this Stevens also not in admit- the trial court did err concludes testimony cross-examination, ting oral Dixon’s into trial court allowed when the error occurred plaintiffs by written evidence the statement coun- signed by Larry this issue Dixon. On and sel objection made. merit claim has since was Stevens’ 2.613(A), pursuant Nevertheless, we find to MCR Nothing any in the state- written error harmless. forceably anything also more contains ment Deptula by Earles and Officers Theresa stated damaging testimony far more Their was Haase. staggering” in the "I was not than words signed by Dixon. statement THE TRIAL ERRED DENYING II. WHETHER COURT IN FOR FOR DISPOSITION STEVENS’ MOTION SUMMARY plaintiff’s THE TO COMPLY WITH ALLEGED FAILURE THE ACT. OF DRAMSHOP AND RETAIN PROVISION NAME Following closing arguments, Ste- counsel for disposition summary a motion for vens renewed comply the terms of the name for failure to with Michigan dramshop provision retain and act, ostensibly arguing merely that Dixon was lawsuit, been as a settlement had named reached between at which prior to trial extinguished. liability time all of his was provision retain The name and 18.993, act, provides: 436.22; MSA as amended in MCL or retailer wholesaler No action by surety, this or his shall be anyone covered act minor alleged or the intoxi- commenced unless action person is a named defendant cated Heyler v Dixon and is retained in litigation the action until the concluded trial or settlement. The rationale for the amendment expressed Clements, in Salas v this Court 57 Mich App 367, 372; 226 (1975), NW2d 101 rev’d on other grounds 103; NW2d 889 as follows: will, The "name provision and retain” to some extent, reduce liability tavern-owner by restricting recourse to dramshop the provision act. The will eliminate practice the common whereby the intoxi- person cated enters into a settlement with the injured plaintiff sum, for a token and thereafter energetically plaintiff assists the prosecu- with the against

tion of a suit provi- the tavern owner. The sion will discourage possible also collusion and perjury by those too weak to resist the obvious temptation which and in original dramshop inherent the act recognized has now been Legislature the through corrected this amendment. While Putney, supra, holds that, where a settle- ment had been entered into between plaintiff and the allegedly intoxicated person prior to the con- clusion of a dramshop against suit liquor the licensee, plaintiffs dismissal of against case the liquor mandated, licensee is our Supreme Court Tebo, supra, held that Putney applied was to be prospectively only, thus making the law exis- prior tence to Putney applicable to the instant case. plaintiff Accordingly, the instant case was Buxton, entitled to supra. In that case this rely that, Court held when an intoxicated defendant executes a settlement agreement and indemnity with the injured plaintiffs, the 1972 name and retain amendment to the dramshop statute does not preclude further against claim the tavern owner. In discussing the purpose of the name-and- App statute, the Bux- provision

retain of Court stated: ton policy of purpose this

Balanced litigation. The encourage the law to settlement be- prohibit to is not intended settlement statute tortfeasor plaintiff his intoxicated tween a owners are except where tavern claims contrary, On the simultaneously settled. first only an in- language the tention retained of the statute indicates require to be to the intoxicated tortfeasor enacting "special as a this defendant. legislation” Legislature mani- has interest fested going The the tortfeasor in the lawsuit. prohibit plaintiff from an intention to a jury claim a tavern. only to a versus with only name must retain plaintiff must not but

But that is all from a requires. prohibit statute To here, settlement, used type "hold harmless” as was disposition litigation impede prompt would cases that would otherwise and force trials of holding, recognizes the In so this Court settled. the course power of the trial court control trial; might, example, a trial court at owner, at prohibit any a tavern reference option Thus, pur- legislative trial pose settlement. out. amply could be carried [69 511.] Buxton, in guidelines

Under established to make hold harmless was entitled plaintiff keep and to with the intoxicated driver settlement in as a nominal defendant. the driver the case to Contrary plaintiff what did. precisely This is assertion, nothing required in Buxton Stevens’ that collusion took plaintiff also establish no that token not for a or that the settlement was place trial court find we that Accordingly, amount. for sum- err Stevens’ motion denying did not plaintiff that failed disposition grounds mary v Opinion op the Court with the comply name and retain provision of the statute.

III. THE WHETHER TRIAL COURT ERRED IN DENYING A STEVENS’ MOTION FOR DIRECTED VERDICT. Following plaintiffs proofs, Stevens moved for a directed verdict ground on the plaintiff that had (1) failed present competent evidence that alleged intoxication on the part of Dixon was a proximate cause of the accident which Barbara (2) Heyler was killed and that Dixon was served beverages alchoholic by employees of Stevens at a time when Dixon was displaying signs of visible intoxication.

The Michigan Standard Jury Instructions state the following four elements proven must be order to maintain a cause of action under dramshop act: 1. that injured damaged or by a

visibly person; intoxicated 2. sold, the defendant unlawfully gave or intoxicating liquor furnished person; to such

3. selling, that such giving or furnishing caused or contributed to the intoxication persons; of such selling, giving that such furnishing was a proximate plaintiff’s cause of the injury. [SJI2d 11, Introduction, p § 11-3.] The standard of applicable review to a denial of a motion for a directed verdict is that review by this Court is limited to whether the party opposing the motion offered upon evidence which reasonable differ; minds whether, could the test is viewing the light facts in a most favorable to the nonmoving party, persons reasonable could reach a different and, so, conclusion if the case is one for properly App 160 Mich given must be nonmoving party jury; can be that inference reasonable every of benefit & Blue Cross v Ford the evidence. from drawn 462, 464; Michigan, of Blue Shield (1986). 389 NW2d most favorable light in a

Stated trial. at established were following facts 1980, drove Heyler Barbara February On facts are The Lounge. to the Confetti Dixon Larry approxi- at place took this to whether not clear as p.m. 5:00 as at approximately noon or 12:00 mately signed by statement Dixon. in the written claimed Lounge, Bar- the Confetti Dixon at leaving Upon remained home and mother’s to her went bara the Con- at Dixon remained day. during there a.m. 2:10 approximately until Lounge fetti morning. following there, that, con- he while Dixon admitted

Larry However, Dixon hour. per one to two beers sumed of the amount his best estimate also stated Bar- to ten beers. eight was consumed intoxicants Lounge later the Confetti Dixon at joined bara 9. She did February evening during beverages. alcoholic any consume lounge Dixon left Heyler Barbara driving a.m. west- 2:10 approximately at together a number passed Road. on Van Born bound and, upon speed high rate at of vehicles into the vehicle back his to maneuver attempting it slid the car and lane, control of he lost right the wind- struck Heyler Barbara post. into a steel and died injuries, head shield, massive sustaining ap- at accident occurred thereafter. shortly a.m., the cou- minutes after only 2:18 proximately lounge. Stevens’ left defendant ple the scene of Dixon at Deptula observed Officer highly Dixon was and testified accident the intoxicated, intoxicants, unsteady smelled Opinion op the Court on his feet and had bloodshot eyes. On cross-exam- ination he stated that upon based experience his with drunk drivers Dixon’s behavior had more to do with alcohol than with shock. Officer Haase gave similar testimony stating that at the scene of the accident intoxicants, Dixon smelled of stag- gered, had bloodshot eyes and at hospital combative and obnoxious. He admitted that blood- eyes shot and staggering would also be consistent with a broken kneecap suffered, which Dixon with shock.

Dixon testified that he did not remember if his speech was slurred on the night of accident; that he was not staggering at all but to a sober person he probably seemed to be visibly intoxi- cated. Counsel for Stevens objected to such testi- mony, based on the fact that Dixon could not testify as to what people’s other observations him would be. The trial court rightfully sustained the objection.

There appears to be no dispute that Dixon was served alchoholic beverages by employees of the Confetti Lounge. However, the mere fact alleged person intoxicated drank alcoholic bever- ages is not sufficient to establish that he was visibly intoxicated. Juckniess v Supinger, 323 Mich 566; 36 (1949); NW2d 148 Lasky Baker, v 126 Mich App 524; (1983). 337 NW2d 561 A 1972 amend- ment act, to the dramshop 1972 PA substi- tuted "visibly intoxicated” for "intoxicated.” Cur- rent case law requires the allegedly intoxi- person cated must be "visibly” intoxicated at the time of Burton, sale. See Archer v 91 Mich App 57; 282 (1979), NW2d 833 lv den 407 Mich 932 Baker, v (1979); Lasky supra; McKnight Carter, v 144 App 623; (1985). Mich 376 NW2d 170

SJI2d 75.02 defines visibly intoxicated as follows: "A person is 'visibly intoxicated’ when his or her App 130 160 Mich

146 Opinion Court of the ordinary to an apparent be would intoxication held that an repeatedly has This Court observer.” proven by act may under action that, if combina- evidence and circumstantial permis- evidence and tion the circumstantial sufficient therefrom are sible inferences drawn case, a directed verdict prima facie establish Golich, 42 86, 88; v See Villa App Mich improper. (1972); (1972), 802 lv den 201 NW2d 38, 56-57; 220 Corp, K-K-M Durbin v (1975); lv den 394 Mich NW2d supra, p Lasky, inquiry posed relevant thus is whether and the of circumstantial evidence

combination as drawn therefrom estab- permissible inference of facts foregoing summarization lished visibly that Dixon was intoxi- permits finding at was last served alcohol cated when he it does. Quite We conclude that Lounge. Confetti apart signed by him from the written statement 1981, Dixon testified at trial that February on person appeared to a he intoxicated. sober Mason, attorney for Do Q. [By plaintiffs]: Mr. I person, that: a sober be- you saying recall "To appeared I have appear, I would would visi- lieve bly intoxicated.” I don’t talk in that my I A. Those aren’t words.

manner, I so know didn’t— Well, not, sir, they your Q. whether are words agree, you you gave the statement did when Lounge, in the you when last served Confetti were person you appear to be intoxi- to a sober cated, visibly intoxicated, would you agreed with me 28th, February correct? Yes, sir; agree. A. I still Q. you agree Do with it at this time? course, again, you can have A. Yes. But then you walk out on the street and did

four beers and start to have a conversation with somebody, your speech slurred, might might little you [Emphasis even know it. added.] Keeping in mind that at trial Dixon admitted he depending drank one or upon and, two beers an hour accepts which version of facts one as to stayed lounge whether Dixon at fourteen clearly apparent hours, hours or nine it is Dixon consumed somewhere between nine and twenty-eight during stay beers his at the Confetti Lounge. Viewing testimony light in the most plaintiff, favorable to viz.: —two beers an hour multiplied by nine to fourteen hours —Dixon con- eighteen twenty-eight during sumed drinking beers fact,

session. This combined with an acci- occurring dent within minutes after Dixon left the lounge testimony arriving and the of the officers at the scene of the accident that Dixon "smelled highly” intoxicants, is more than sufficient evi- jury reasonably dence from which a could conclude visibly that Dixon was intoxicated when he was Certainly served beer. this is a more reasonable conclusion than the inference which defendant argues namely: draw, we should that Dixon’s visi- only apparent ble intoxication became after the accident occurred.

Although Stevens’ motion was made at the con- plaintiff’s clusion able to Stevens’ chief, of case in was also prove upon cross-examination of one of Terry witnesses, Earles, that Dixon was visibly intoxicated. Earles testified that she did not go Larry want Barbara to with visibly Upon becaue he was intoxicated. recross- by plaintiff’s following examination exchange counsel place: took you But do recall that at you the time that

Q. Opinion op the Court Lounge, you up were him at the Confetti observed visibly he was opinion that formulate an able to intoxicated, that is correct? A. That’s correct. specific factors remember what

Q. you But can’t that to conclusion? you led his behavior correct. A. That’s foregoing reasons, that we conclude

For the denying defendant’s did not err trial court motion for a directed verdict. TO THE COURT ERRED IN FAILING WHETHER TRIAL

IV. LAY TO THEIR OF WITNESSES LIMIT THE TESTIMONY OBSERVATIONS. present argues of under the state

Stevens that prove only way intoxication visible the law the by testimony of and conduct as to actions is person, "opinions alleged intoxicated lay to whether intoxicated witnesses as person much or had too to drink intoxicated was (based allegedly peculiar knowledge their on person) Ste- not be admitted.” should intoxicated explains that the statements Officers vens then Deptula Terry and of Earles and Haase visibly not based on Dixon what intoxicated were upon actually but the witnesses observed knowledge prior acquired from arrests of other personally knowing the from deceased. drivers or In rule contends that Stevens this connection testimony lay opinion permitting witnesses 701) (MRE applicable to the instant case opinions the vari- because "the conclusions nothing determination to a ous witnesses added disagree jury.” made We that must be grounds. two each testified

First, the several witnesses 149 physical certain observations made of Dixon. In People App Grisham, v 280, 286; 335 "any our NW2d Court ruled that wit- qualified testify physical ness as to his her opinions observations and formed as a result added.) (Emphasis Second, those observations.” narrowly. MRE Stevens construes the rule clear 701 too Under opinions expressed may "helpful if ato understanding testimony of his or the deter- any mination of a fact issue.” We also note that possible prejudice undue was minimized opposing cross-examination, fact that on counsel opportunity specific perceptions had to test the upon opinion which the witness’ was based. V. WHETHER THE TRIAL COURT LIMITED UNDULY THE INQUIRY OP SCOPE INTO THE CARE AND SUPPORT OP STACY HEYLER.

Observing damage that the issues the instant principally case involve the losses sustained Stacy Heyler, decedent, the minor child of Stevens imposed by contends that the limitations the court inquiry support into the child’s and care before and after decedent’s death were too restrictive. We argument support find the without merit since damage. an element of lengthy prior Decedent did not have work history hap- and was off work when the accident pened. Thus, there was little evidence adduced regarding support provided what decedent her daughter. upon only damage fact, elements of jury

which the was instructed were shock fright companionship, including and loss of purpose Thus, loss services. we see no in further inquiry support into the extent of of the minor child. suggests Stacy’s grandpar-

Stevens further op Opinion the Court sup- caretaking source of primary her ents were the record. supported by not This claim is port. no for reversal grounds find summary, we defendant Stevens by issues raised any of the Docket No. 88268

DOCKET NO. by taken separate appeal turn to the We now the trial judgment by entered from the the judgment court. Plaintiff contends rea- in amount for three was insufficient Stevens (1) severally and dramshop jointly owner is sons: (2) driver; prejudgment the intoxicated liable with trial during period the to accrue interest continues (3) court; the the trial and stayed by was order of percent comparative of fifteen determination jury automatically been should not have negligence dramshop action. applied in the AND SEVERALLY I. IS THE DRAMSHOP OWNER JOINTLY AUTOMOBILE LIABLE THE INTOXICATED DRIVER? WITH argues Michigan under law Plaintiff severally liable is jointly defendant wrongful for the offending vehicle driver with (Salim LaGuire, v party death of a third O’Dowd v General 334; [1984]; 361 NW2d Corp, Motors 597; [1984]) 358 NW2d thus, liable for the entire and, Stevens is fully $175,000 $350,000 than for verdict. rather present state of dispute Stevens does not because O’Dowd was that, de- law but contends tried the instant case was two months after cided Salim, one month although decided and because case, until published in this trial was before was tried trial the instant case after and because pre-Salim law that counsel on the basis judgments separate, verdicts and would be it inequitable unjust would to make defen- judg- $350,000 dant Stevens liable for the entire persuaded argument. ment. We are Stevens’ length For the reasons set forth at some in Issue supra, ii of Docket No. the instant case was guidelines existing tried under the set forth and supra. guide- Alexander, Buxton v Under those liability liability lines of the tavern and the separate. the intoxicated driver were Under Put- ney supra, Haskins, v a decision rendered two years case, before instant trial suit liquor automatically establishment dis- alleged missed once a settlement is made with the Thus, intoxicated Havlik, driver. but v Tebo supra, applicable Putney which held that prospectively only, plaintiffs against claim defen- dant Stevens would never have been tried and the judgment $175,000 would never have been ren- keep pre- dered. To Stevens in the case under Putney judgment rules but then to double the against post-Putney him under rules is unconscio- justice. Nothing nable and offends in the record remotely suggests jury that had the known that Stevens have $350,000 would been liable for it against him would have returned a verdict for contrary. fact, $175,000. In the record reflects closing argument for counsel asked the jury against $100,000 to return a verdict of jury $500,000 Instead, and Stevens. equal returned verdicts of amounts each defendant.

II. DID THE TRIAL ERR COURT IN DISALLOWING PRE- JUDGMENT THE INTEREST DURING PERIOD TRIAL WAS STAYED? stayed by Judge

The instant case was the Chief App 130 160 Mich 152 4, from November Circuit Court Wayne 1984, 1982, 19, application for pending to March Put- Michigan Supreme Court on in the rehearing Putney whether supra, in to determine ney, order appli- prospective given be retroactive should for a toll provision made no This directive cation. of the during period interest prejudgment However, entered finally judgment stay. during this interest prejudgment trial court tolled period. month I6-V2 expressly pro 600.6013; MSA 27A.6013

MCL judg paid money is on interest to be vides is filed. The complaint the date the ments from is intended primarily is remedial provision in prevailing parties expenses for compensate money damages for bringing in actions curred Goins v damages. such receiving in any delay Co, 185, 292; 347 Ford Motor App 131 Mich NW2d (1986). it (1983), lv den 424 Mich 879 Because 184 nature, liberally it con remedial is to is American its purpose. effectuate in order to strued Anodco, Co, v Metals Supp 572 F 895 Reynolds Inc 1984). (CA 6, (WD Mich, 1983), aff'd 743 F2d statute connotes use of the word "shall” v State requirement. Wayne Co mandatory duty or Treasurer, 252; 306 NW2d App (1982). Furthermore, 412 Mich 915 lv den judg statutory money interest imposition mandatory. actions ments recovered civil Co, Express Lakes Comm v Great Hwy State (1973). 170, 185; 213 NW2d the of stay running tolls The issue of whether a of in Michi- impression interest is first statutory 2d, However, Usury Am Jur Interest gan. 90-91, 103, pp provides: § valid, interest will not adjudication If is the the a debt during payment time that of accrue prevented is through no fault of the debtor by law, interposition as payment pre- where is by order, statute, judgment, vented judicial or Thus, process. not, rule, interest will as a be charged against payment enjoined one who is making from appears it pre- unless or fairly can actually gained sumed that he advantage by some money the use of the profit or received some interest others, from its use although, according authorities, to some he pay must the money into court in escape order to payment of interest. [Emphasis added.] Interest the judgment case, in the instant excluding the 16- month period is stay, sev- V2 percent enty-two of the judgment and is increasing $2,474.08 at the rate per month. view that, decisions other jurisdictions where delay through caused no fault of the debtor and because in the delay instant case was not occasioned Stevens, defendant hold we the trial court the instant case not err did in disallowing prejudg- ment interest during period of stay.

III. DID THE TRIAL COURT ERR IN RULING THAT DECE- DENT’S FIFTEEN PERCENT COMPARATIVE NEGLIGENCE WAS APPLICABLE TO IN THE DEFENDANT STEVENS DRAMSHOP ACTION? special

In the form of the jury verdict found that Barbara Heyler was fifteen percent negligent but applied this comparative negligence against Dixon only and not the liquor establishment. However, court applied trial per- fifteen comparative cent negligence against both defen- dants and judgment reduced the Stevens $149,000. Plaintiff contends court trial erred. disagree. We

Comparative negligence is a factual defense which is available to dramshop defendants as well App 130 160

154 by Maher, R. P.J. M. Concurrence Partial facts where the driver defendants as to intoxicated support Company, Lyman Inc, 136 it. v Bavar (1984). ap- App Plaintiff 407; NW2d Mich pears finding support argue facts do not the part negligence comparative on the contrary. Heyler. the The facts are to Barbara facts disclose returned voluntarily Heyler that: Barbara Lounge knowing full well to the Confetti lounge drinking at the had been that for several Dixon upon returning hours; Barbara sat with observing Dixon consume one and friends Dixon although per hour; she did drink two beers stop attempted that she there is no evidence drinking; finally, though and, she lived from Dixon easily lounge and could from the but two blocks home, elected to leave with have walked who she lounge carrying the a bottle walked out of passenger side, beer, on the and entered car persons allowing though other him to drive even visibly defendant was then in the bar believed intoxicated. neg- Clearly, Heyler comparatively Barbara only against ligent. apply negligence To and not the establish- intoxicated driver ment which provided intoxicants would cause circumstances, Under the inconsistent verdicts. comparative applied very properly judge trial negligence to both defendants. summary, we find no error on issues by plaintiff Thus, in

raised having Docket No. by

found no error the trial court either judg- 88268, Docket No. 88169 or Docket No. May 2, 1985. is trial court entered ment having prevailed party costs, neither affirmed. No in full. J., concurred.

Shepherd, part (concurring dis- R. M. P.J. Maher, R. M. Maher, Partial Concurrence P.J. seating part). I respectfully dissent from the sequitur non of the in No. 88268 majority Alexander, of Buxton v application which 507; NW2d 111 through Putney v Haskins, 181; 414 (1982), Mich 324 NW2d 729 LaGuire, Salim v precludes application 334; Mich App and O’Dowd v 361 NW2d 9 General Corp, Motors 597; 358 NW2d (1984). Putney requires uphold us to dram- shop judgment I Stevens. see no inequity doing so therefore observe no reason balance- Putney’s effect by denying application of Salim out and O’Dowd. Moreover, I see nothing the jury verdict which would warrant deci- majority’s Salim sion to O’Dowd. application withhold injury this case was indivisible and could not have occurred without the negligence of both circumstances, defendants. Under these joint and several liability intended to fully compensate victim, fairly tax the gener- tortfeasor. See CJS, ally, Negligence, pp 1117-1127. I § apply joint would and several liability judg- ment.

Case Details

Case Name: Heyler v. Dixon

Court Name: Michigan Court of Appeals

Date Published: May 8, 1987

Citation: 408 N.W.2d 121

Docket Number: Docket 88169, 88268

Court Abbreviation: Mich. Ct. App.