*1 1971] Devereatjx v.
ROBERTSON DEVEREAUX Opinion of the court Intoxicating Liquors Dramshop 1. Act —Survival of Action. — A damages cause action under the act suffered injured by by an intoxicated survives the injured person express death because of the act’s provision, survival may such be maintained under the personal representa- act name injured person; tive of the the cause of action under the not limited the rule that where death, prosecuted cause the action must be under the wrongful death and may statutes not be continued even if the during action is commenced lifetime injured plaintiff (MCLA §§436.22, 600.2921, 600.2922). Wrongful 2. Death — Death —Cause of Action. wrongful A death action be maintained if the decedent could have in his (MOLA recovered own name had he survived 600.2922). § Dramshop Wrongful 3. Action —Plaintiff’s Eault — Act — Death Act. dependent’s recovery is barred fault plaintiff act; under the but dram- shop act, dependents may damages though recover even [1, [6] '2] 3,4] Right of Survival of ALR2d 1140. Right of 45 Am Jur 22 Am Jur forming drugs to another. 75 ALR2d 833. 7] 45 Am consequence action at Am Jur Jur References action or 2d, Intoxicating 2d, 2d, person. 64 Death of sale 2d, common law for under civil Intoxicating Liquors cause Intoxicating for Points 23. ALR2d 705. gift Liquors action under damage Liquors in Headnotes intoxicating 608 et §§ civil § sustained 594. seq. damage liquor act for death or habit- acts. App Mioh dependent they are was intoxicated or upon whom decedent 436.22, (MOLA fault
at §§ *2 Wrongful Fault—Dramshop Death Act. Act — 4. Action — was at prove defendant fault The must act; act, there under the at prove a defendant tavern owner was no is need causally plaintiff’s fault, related to only an unlawful sale 436.22, (MOLA §§ Intoxicating Liquors Dramshop Act —Personal Parties — 5. — Representative Standing. — whose cause of action A of decedent proper party plaintiff act is a is based on the for damages in of the interests the decedent recover (MOLA 436.22). injury the decedent suffered Damages. Intoxicating Liquors Dramshop Act — 6. — accruing aetion decedent cause of recovery damages for the basis for the act cannot be the of his parents nor the loss loss of to the decedent’s services companionship (MOLA 436.22). love and by O’Hara, J. Dissent Intoxicating Liquors Dramshop Parties — Act —Personal 7. — Representative Standing. — unequivocally Michigan Supreme has held that “under personal representative decedent proper party plaintiff”. J. Joseph Moynihan, from A. Appeal Wayne, at Detroit. 1970, Division December Submitted Decided March (Docket 7557.) No. as Irma A. administra-
Complaint Robertson, for Robertson, trix the estate her son Steven and the death for the suffered Y, Daniel Sam Steven, against Devereaux, Gr. judgment Inc., Phillips. Summary Stewart G-. Re- for appeals. defendant Sam Inc. Plaintiff Y, versed and remanded trial. v. Devereaux Taylor, B. for plaintiff.
Charles Doelle, Vandeveer, Garzia, Tonkin S Kerr (by Buell Doelle Susan Haroutunian), L. for de- fendant Sam Inc. Y,
Before: and Levin J.,C. and O’Hara,* Lesinski, JJ. J. Robertson, was years age, Levin,
killed when an automobile in was riding wbicb he as a with collided another automobile. passenger His Irma A. mother, as executrix of Robertson, estate, his commenced this beer and wine licensee, Sam Y, Inc., against Daniel *3 G. Devereaux, the driver, and Stewart G. Phillips, the owner of the automobile in which Steven was riding.
The issues raised on this concern appeal plaintiff’s against Sam Y. complaint Y alleges that Sam made sales of illegal beer Devereaux, who was a that Devereaux be minor, came he intoxicated, that drove the automobile in a grossly negligent manner. The plaintiff claims that Y Sam is under liable the act* “for * Supreme Justice, Former sitting Court Appeals the of Court by assignment pursuant to Const art 23 as in amended § (Stat MCLA 463.22 Ann Supp 1970 Cum See fn 4 for text. Alternatively principal (plaintiff's standing to the issue to main- action), tain this Sam Y summary contends judgment that the in its favor should be affirmed because Steven an Robertson was not party. alleged It innocent group of Steven was one a high four under-age boys school plan who a contrived obtain evening case and drank the beer. beer they driving one city while were around the boys that Steven was plan one of the who executed the disposition Our unnecessary of this ease makes it for us consider decide whether in the distinction act eases between innocents and application 16-year-old has boy. non-innocents to a What little there is in the factually support record does not a sum- mary judgment ground. on the alternative App Mich Boberts death for the damages pleaded
all on”.2 judg- Y’s summary Sam court granted
The trial the personal repre- ground on the motion ment party is not proper deceased person sentative of a act. the dramshop of the are and Justice O’Hara The trial court is controlled in this case that decision view Mer- Genesee Supreme of our statement Bourrie & Bank Trust Company chants that “under 383, 389, is not of the decedent plaintiff.” proper party Bourrie Supreme There the differently. We read B. Owings, the survivors of Duane Court held that who become had the deceased that condition while in defendant taverns and could main accident, was killed in an automobile the taverns their tain an action said remedy, act. Their in the provided Court, special remedy was the that survivors Bourrie also holds toxicologist Wayne County examiner’s office was medical upon an of alcohol deposed, found no trace and he testified that he body on. of Steven Roberts examination appear depositions was one three It from the that Steven does car, boys riding passengers in this alone around as Devereaux’s but illegal part “con- support would not the view that he was spiracy” participated the fruits and drink that he to order beer delivery boy conspiracy. True, Primak, part-time Harold boys, deposition *4 on for Y a of the four testified Sam and classmate However, asked, “How do “they chipped in”. was then that all he they be you that?”, responded, wouldn’t know to which he “Well unless, you know, anything that, you pay like arguing, who would or something like know, enough, had or that”. guy must not have one testimony guessing and that this it that Primak was We think obvious finding summary judgment based on a support a would not genuine not a issue of as to whether Steven Robertson there is fact was innocent. 2 personal complaint alleges an it action “for the The Robertson, pain by for which he suffered suffered expenses, expenses, of death, burial loss funeral the to his ultimate companionship”. his love and parents, his and of the service to Deveremux and can claims dependents only assert their in the their own names, through personal of the deceased representative person.3 In the the claim instant case is not advanced of damages account or by suffered survivors depend- in interest him- ents, but the of the injured person self for himself damages the he suffered. If Steven Robertson had he clearly been maimed would have a maintain for right an action the damages suffered. His he death does not prevent from advancing Steven’s for recover he suffered. Steven’s cause of action under an express survives of provision in dramshop act. act provides crystal-clear language:
“In case of the death of either party, action or in right action given this section shall survive to or his or her executor against or administrator.”3 only proper posture “The for this case would have involved the injured parties (for instance, guardian the widow and the of the deceased) suing children of defendants under the act.” Company Genesee Merchants Bank Trust v. Bourrie & The full text act reads: “Every wife, husband, child, parent, guardian persons or other who person shall wise, by property, be in support or means of or other- person by selling, reason of the unlawful giving furnishing any any or persons intoxicating such liquor, right shall have in against liquor action or person his her name who shall selling giving any such or such have caused or contributed to the persons intoxication of said or or who any shall have or injury, caused contributed to principal such and the any given and sureties to bond liable, severally under this law shall be jointly, persons selling, with or giving furnishing or any spirituous, intoxicating liquors aforesaid, or malt as provided section, right this shall have the exemplary damages actual and in such sum not less than $50.00 in jury may each case as the or determine, surety court but no required by shall be liable excess of the amount of the this bond Any years happen- action shall be instituted within after ing of the party, event. case of the death of either the action right given or of action in this section shall to or survive administrator, every or her his husband, wife, executor such action parent, general reputation child the relation parent husband and wife or prima and child shall be facie evi- relation, dence such and the amount so recovered either husband *5 App 85 32 22 Mich Satkowiak (1970), App
In Plowman v. of onr panel another facts, on 425, 428, parallel to permit the quoted provision construed who injured person an act.5 claim under the to advance a died department, for the fourth division appellate in con similarly ruled Court, York Supreme New is sub act, which York the New struing concerning our the clause act; identical to stantially ****6 Bator to ours.* v. of actions is identical NYS2d Barry (122 App Div the statu The New York Court declared 604). “it is difficult plain clear, was so and tory language defendant which the upon to understand the theory separate parent or or his or her sole wife child shall be be property. damages together of suit shall Such with the costs any trespass in before court recovered an on the case parent shall jurisdiction; any in be competent case where the may sue any damages, father or mother entitled to such either the therefor, recovery by parties shall a bar one of such be alone but required by brought by this act shall suit the other. The bond to surety. year year unless sooner cancelled continue from No to except days’ notice surety any upon 10 written shall cancel bond Supp (Stat Ann 1970 Cum MCLA 436.22 the commission.” provision In Plowman Bourrie and the we considered expressly providing survival of the act for the accompanying party” (see fn 4 and the event of the death of “either provision), admin language and held that the text for the of this minor, owner of a to whom tavern istratrix the estate deceased intoxicating beverages, maintain an had made unlawful sale the tavern owner. an action under the language York does contain some additional The New statute below, viz.: underlined property, injured person, means of “Any who shall be person, support, intoxication by any reason or otherwise not, any person, resulting in whether his death * * * shall, against any person who .” right shall have a of action “by modify reason of the appear The underlined words would injured”; “any be person who shall person”, not intoxication of person rather than being of the intoxicated the of the rely that referred to did not any event, New York Court person. holding on the survival clause words but the underlined dramshop act maintained under the action could be died injured by person who an intoxicated administrator of enroute shortly automobile collision. hospital after an Devereatjx deny- a reversal of trial seeks the order” of the court ing complaint. defendant’s motion to dismiss the *6 Vogt (CA2, 1964),
In Zucker v.
329 F2d
Appeals
United States Court of
for the Second
construing
Circuit,
the Connecticut
though
reached the
act,
same result even
the Con
provide
expressly
necticut act does not
for the sur
of actions;
vival
the Court relied on Connecticut’s
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see
(147
Wendelin v. Russell
The Bourrie rule serves well the factual con- presented. wrongful may text there death action only be maintained if the decedent could have recov- Frequently, ered his own name. inas Bourrie, person the deceased himself was intoxicated at the physical injuries time he suffered and cannot re- cover because of his own fault; under the dependents may, act his though nevertheless, recover even upon they dependent
the decedent whom are was intoxicated or at fault. Under the plaintiff prove death act, the must that the defend- ant was fault; at act, there is prove no need that a defendant tavern owner only causally was fault, at an unlawful sale related plaintiff’s loss. The statement in Bourrie that “under the personal act the of the decedent is proper party plaintiff” a not refers to an action dependents seeking to enforce their claim for loss support. making of means of that statement, the Court did not itself address factual situ- 7 policy The that actions universally shall survive has been made applicable to all judicature actions and claims the revised provides: It “All actions and claims survive death”. MOLA 600- (Stat Ann 27A.2921). .2921 language Rev This all-embraeive replaced provision in the Judicature provided Act of which certain kinds of actions! See committee com- reprinted annotation, MOLA, p 730; ment as Ann, p Stat App O’Hara, Dissent J. than one it. Conrt did other before
ation a non-dependent seeking not focns on the person to his injury prop- for physical Clearly, erty. physically as a an unlawful sale result as the dramshop act, just has claim under of the act the express language clearly if the claimant should die. survives even question regarding substantial There recover. It damages amount died immediately Bobertson appears *8 after The briefs do the accident.* upon shortly we not discuss intimate damage question claim which sur no Steven’s opinion,9 except would include for “the loss of vived his love and to his parents services *7 were the items of among which companionship” in the footnote damage alleged complaint (see 2). trial. Costs to plain- Beversed and remanded for tiff. mother of Plaintiff,
O’Hara, (dissenting). J. estate, of his Bobertson and executrix 229; Micks Norton (1925), 231 Mich v. Nelson v. Glover 8 cf. (1941), 297 Mich (1931), 308; 256 Mich In re Estate Beiersdorfer’s must Michigan, death the action In where cause may prosecuted be con- be tinued, the death act and not under during of the if the lifetime even the action commenced (MCLA injured plaintiff, the act 1970 Cum his death under survival after §§ 27A.2921, Supp 600.2921, Ann 600.2922 1962 Rev § [State ). 27A.2922] § claim arises under limitation does not control where the But this provision. special dramshop act its own which has Cf. Bourrie, supra. Company Trust GeneseeMerchants Bank & death to avoid limitation in the survival and acts serves This redundancy awarded the survival and objectives awarding full applying dramshop acts. redundancy will, doubt, accomplished avoiding no be compensation and construction; developed by judicial be relevant: Law principles in like situations Prosser, 94, 337, seq.-, McCormick, Damages, p et § 121, 928, seq.-, et (3d ed), p cited authorities of Torts seq. Wrongful Death, 14.4, fn et Recovery Speiser, v. Devereaux O’Hara, J. Dissent brought § 436.22 act, MCLA suit under the §18.993). (Stat Supp Ann Plaintiff’s 1970 Cum in an crash while decedent was killed automobile riding passenger. as a for sum-
Defendant, filed motion Y, Inc., Sam mary judgment ground plaintiff on the bring proper party executrix was not the this provisions action under of the act. question appeal per- The sole is whether the proper sonal decedent is party apparent post-hearing
It became after our first represent minority conference I that would view. I will be brief. Supreme
I nor natural, accord to our Court the everyday meaning language. mal, of its decisional interpretation I do the same in the of a statute attempt legislative Ergo, to ascertain intent. when Supreme says unequivocally, “under the personal representative act the proper party plaintiff”, decedent is Genesee Company Merchants Bank & Trust v. Bourrie (emphasis supplied), exactly me it meant what it I said. find no occasion to seek out esoteric differentiations which would render language applicable this clear decisional inapplicable here, possibly applicable there, inapplicable plague somewhere else. Such is the profession.1 our *8 judge. I would affirm trial Costs to the de-
fendants. 1 I am unaware Plowman v. Satkowiak
App I attempt do not to reconcile the unreconeilable.