Pesola v. Pawlowski
206 N.W.2d 780
Mich. Ct. App.
1973
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*1 App 516 45 Mich PESOLA v PAWLOWSKI op Opinion the Court Intoxicating Liquors Dramshop 1. Act —Directed Verdict —Evi- — Degree dence — of Proof. (1) dramshop under the The elements of a cause of action act are: (2) person; was an intoxicated immediate tortfeasor defend- ants, agents, intoxicating liquors tortfeasor; or their sold to the (3) sale, as a result of such the tortfeasor continued in an (4) accident; intoxicated condition until the time of the and contributing plain- such intoxication was cause or cause of (MCLA436.22). injury tiff’s Illegal Intoxicating 2. Liquors Dramshop Act — Sales. — liquor Sunday "illegal A sale of on is not the kind of sale” act; dramshop illegality referred to in the is determined 436.22). (MCLA purchaser the condition of the by O’Hara, Intoxicating Liquors Dramshop 3. Act —Directed Verdict —Evi- — Illegal dence — Sales. beverage Evidence of an unlawful sale of an alcoholic together claimed immediate tortfeasor with the reasonable dramshop inferences therefrom an action under the act was jury question, sufficient raise a and a directed verdict for improperly granted defendant under such circumstances was (MCLA436.22).

Appeal from Wayne, Canham, James N. J. Sub- 12, 1972, mitted Division 1 December at Detroit. (Docket 12650.) 26, No. Decided March 1973.

Complaint by Dalton against Stanley Pesóla [3] [1] [2] 45 Am Jur 45 Am Jur 45 Am Jur 2d, Intoxicating 2d, Intoxicating Liquors 2d, Intoxicating Liquors References for Points Liquors § 20.§ § in Headnotes 279. 400. Pesóla v Pawlowski op Opinion the Court F. and Valentine Lobich Pawlowski for damages for injuriés under sustained act. Directed automobile accident. an verdict for de- appeals. Plaintiff Reversed. fendants.

Charfoos, Gruber, plaintiff. Charfoos & for Schwartz, Silver, Sugar, Schwartz Tyler, & for defendants. J.,

Before: P. and V. J. Brennan and Quinn, JJ. O’Hara,*

V. J. brought Plaintiff this action Brennan, (MCLA damages for under the act 18.993). 436.22; MSA At the of close the plaintiffs proofs, granted the trial court defendants’ motion verdict; a plaintiff appeals, for directed and first argues that trial the court erred by granting de- fendants’ for a motion directed verdict.

Since, in reviewing question this we must look at the evidence in the light most favorable to the (Shandor plaintiff Lischer, v 349 Mich 556 [1957]), essentially we have borrowed the following state- appellant’s ment of facts from brief: plaintiff’s The testimony was that on Sunday, 5, 1969, January he was a customer in defendants’ present bar. Also Straub, was one Howard who had been there some time. plaintiff Both and Howard regular Straub were customers of defend- ants’ In plaintiffs bar. presence, Straub consumed at least two drinks of hard liquor which were poured by defendants’ waitress. The defendants’ prohibited license the sale of anything beer but or wine on Sunday. wife,

Howard Straub’s Mickey, present for a * Justice, sitting Appeals by Former Court the on Court of assignment pursuant 1963, 6, to Const art 23 in § as.amended 1968. App 45 Mich Opinion op the Court bar; of after a period time the disagreement, and his wife left. Howard Straub Later Howard alone. He ordered drink, Straub returned another plaintiff going then he discussed and Straub’s They car to another bar. subsequently left to- gether.

Some had fallen and there snow was a light layer ground. of on the the snow On way deliberately Straub "fishtailed” the car. demonstrating technique Straub was for recov- ering plaintiff, from a skid to who not driver. found the other bar They closed and back started to defendants’ bar. Straub fishtailed again the car and apparently accelerator stuck. Straub was on the floor appar- car trying ently to free it when the car pole, hit a injuring Straub and severely injuring plaintiff. plaintiff Both Straub and were taken to Holy Cross *3 Hospital. Arends,

Doctor physician Norman the at Holy that, Hospital, admission, upon Cross testified Mr. produced Straub no coherent answers and had a noticeable odor of alcohol on his breath. Jean Pearce, a X-ray department, nurse the testified that she had made a notation at the hospital that "very Straub was drunk and wild”. She couldn’t take of requested all the X-rays because he was uncooperative. facts,

On these we conclude that the trial court by granting erred defendants’ motion a di- for rected verdict. In to order a establish case under act, the dramshop plaintiff prove the must the (1) following four elements: the immediate tortfea- (2) sor an defendants, intoxicated person; or agents, their sold intoxicating liquors tort- (3) feasor; sale, as a result of such the tortfeasor continued in an intoxicated condition until the Pesóla v Pawlowski Opinion of the Court (4) and, accident; time of the such intoxication was contributing cause of plaintiff’s the cause or in- (1959). Dudewicz, 355 Mich Long v jury. plaintiff question We believe the has raised a as of these fact to each elements. Regarding the first, a infer the jury could tortfeasor’s intoxication wit, wife, from his actions: to quarreling with his irresponsible driving, uncooperative and his atti- hospital. tude at the There is direct testimony that furnished liquor defendants to Mr. Straub. element, Regarding the third if the jury found he hospital, drunk at it must necessarily find that he was while at intoxicated defendants’ bar. This temporal is due to the close proximity be- departure tween the from the bar and the acci- dent, and the fact that the tortfeasor had no access any intoxicating liquor during this inter- Finally, val. could jury conclude that Mr. Straub’s intoxicated condition contributed to his erratic driving. proofs

While these are definitely minimal, they are nevertheless sufficient questions to raise of fact regarding each plaintiff’s element of cause of ac- tion; questions such of fact can only be resolved the jury.

All of the authority to which the defendants refer in support of the trial court’s decision are distinguishable. In each of the cases on which they rely, which our upheld Court a di- rected verdict judgment or a notwithstanding verdict on defendant, behalf of a dramshop-act Court could point to the proof absence of on one of *4 the four aforementioned elements.

In O’Brien v Michigan Co, Bonding & 202 Surety (1918), Mich 129 there was no testimony whatso- ever that the tortfeasor ever imbibed at all. There awas total lack proof being as to decedent App 520 45 Mich 516 O’Hara, by any liquor served the defendant in Nylund v by (1940). Gemo, 295 Mich 75 In Juckniess v Su- pinger, 323 (1949), Mich there was no testi- mony that a tortfeasor was drunk when leaving defendant’s and furthermore there was an intervening source of alcohol. There was no testi- mony whatsoever that the tortfeasor was intoxi- Wyatt v Chosay, 330 Mich cated at any time (1951). Dudewicz, In Long v supra, the trial court acting as a trier of fact and thus a different presented issue was to the Supreme Contos, Court. Eisenzimmer v 4 Mich App 651 (1966), appellant which was, relies on unfortu- this nately, reversed our Court on (See precise issue. 379 Mich 656 [1967].) argument Plaintiffs is that defendants’ illegal admitted sale of alcohol to the tortfeasor on Sunday is sufficient to bring this case within the purview of the dramshop act without a showing of the tortfeasor’s contemporaneous, intoxication. We find argument without merit. In Maldonado v Inc, Claud’s (1956), 347 Mich 395 our Supreme Court read bonding provision of the dramshop together act provision with the establishing cause of action. The Court therein interpreted relevant statutory language applicable as to a sale person to a to it whom illegal liquor; sell this construction would foreclose plaintiffs inter- pretation. That interpretation being that dramshop act applies to all illegal Therefore, sales. a sale which illegal is due to its time or day does give not rise to a cause of action under the dram- shop act.

Reversed and remanded. J.,

Quinn, P. concurred. result). O’Hara, J. (concurring in agree I with the result reached by Judge Brennan. *5 Pesóla v Pawlowski O’Hara, agree not, however,

I do that the four numbered opinion elements set forth in his constitute the requirements to establish cause of action under act. ample

In the I case at think there was testimony, together with the reasonable inferences therefrom, to establish that there had been an beverage unlawful sale of an alcoholic claimed immediate tortfeasor. This raises a sub- jury question missible under the concerned stat- proper ute,1 with, course, instructions. 436.22;

1 MCLA MSA 18.993.