Opinion
Docket No. 77-4931.
Decided May 2, 1979.
Philo, Atkinson, Darling, Steinberg Harper, for plaintiffs.
Law Offices of Nazar Berry (by Barry M. Kelman), for defendants.
Before: N.J. KAUFMAN, P.J., and T.M. BURNS and R.M. MAHER, JJ.
Plaintiffs appeal from the order of the trial court granting defendants' motion for accelerated judgment of their complaint for failure to name the alleged intoxicated person as a defendant, as required by the dramshop act, MCL 436.22; MSA 18.993.
Plaintiffs' complaint alleged that defendants were owners of a party store at which one Wayne L. Bradford, a minor, purchased a twelve-pack of beer. Bradford became intoxicated as a result of consuming the beer, lost control of his automobile and struck an automobile driven by plaintiff Rose Rowan, causing her injury. The complaint alleged violation of the dramshop act as well as negligence in failing to supervise employees and negligence in selling intoxicating beverages to a minor. The trial court held that plaintiffs' exclusive remedy as against defendants was an action under the dramshop act, that their complaint alleged no common-law cause of action and that failure to name and retain the alleged intoxicated person rendered their complaint fatally defective.
On appeal, plaintiffs mount a broad constitutional attack on the name and retain provision and claim in addition that their complaint stated a cause of action for common-law negligence. We reject both claims, and affirm the trial court.
Plaintiffs first contend that the name and retain provision denies them their First Amendment right of free access to the courts, "a `fundamental right' which triggers application of the `strict scrutiny' test of Fourteenth Amendment jurisprudence." We assume that plaintiffs intend by this to raise a claim of violation of due process by denial of a fundamental right. However, the Supreme Court recently rejected out of hand the contention that a legislatively created cause of action constitutes a fundamental right requiring strict scrutiny of any restrictions imposed thereon by the Legislature, Forest v Parmalee, 402 Mich. 348; 262 N.W.2d 653 (1978).
The Court in Forest, supra, applied the traditional "rational basis" test in upholding the two-year statute of limitations on actions against governmental units for negligent maintenance of highways against an equal protection attack, saying:
"The law has long held that, in creating a right, the Legislature may place reasonable restrictions on the exercise of that right. Bement v Grand Rapids I R Co, 194 Mich. 64; 160 N.W. 424 (1916). In giving plaintiffs the right to sue the state, Minty v Board of State Auditors, 336 Mich. 370; 58 N.W.2d 106 (1953), the Legislature placed a specific time limit on plaintiffs' exercise of that right. This time limit is neither arbitrary nor capricious. Therefore, it cannot be said that it violates equal protection of the law." Forest v Parmalee, supra, at 362.
Similarly, this Court has upheld the name and retain provision of the dramshop act against the claim that it arbitrarily created two classes of plaintiffs, saying:
"The `name and retain' provision will, to some extent, reduce tavern-owner liability by restricting recourse to the dramshop act. The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provision will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act which has now been recognized by the Legislature and corrected through this amendment.
"These considerations constitute a rational basis for the enactment of the `name and retain' portion of the amendment." Salas v Clements, 57 Mich. App. 367, 372; 226 N.W.2d 101 (1975), rev'd on other grounds 399 Mich. 103; 247 N.W.2d 889 (1976).
For those same reasons, we find no violation of due process and no undue restriction of plaintiffs' right of access to the courts.
Plaintiffs also claim that the name and retain provision usurps the rulemaking power of the Supreme Court, in violation of Const 1963, art 6, § 5, by establishing a "forced joinder" provision which conflicts with the "permissive joinder" rule of GCR 1963, 206. This argument, however, ignores GCR 1963, 205, which mandates "forced joinder" of parties whose presence is essential to enable the court to render complete relief. Although joint tortfeasors were not required to be joined in one action at common law, see Donlin v Detroit United Railway, 198 Mich. 327; 164 N.W. 447 (1917), the cause of action created by the dramshop act is wholly statutory, Salas v Clements, supra. We think that the Legislature has the power to define what parties are essential to a cause of action which is wholly their own creation.
Plaintiffs also allege that the name and retain provision violates the title-object clause of our constitution, Const 1963, art 4, § 24, by incorporating a provision governing judicial procedure in an act intended to regulate alcoholic beverages. However, this Court has rejected the same argument against the limitation of actions provision of the same statute, Gray v Blackman, 30 Mich. App. 212; 186 N.W.2d 76 (1971). We see no reason to reach a different result with regard to the name and retain provision.
Plaintiffs' final constitutional argument is that the dramshop act confers a special privilege on a small class of persons, in violation of Const 1963, art 1, § 2, the equal protection provision of our constitution. The thrust of plaintiffs' argument appears to be that by requiring joinder of the alleged intoxicated persons, the statute confers on liquor retailers an additional protection against liability not accorded other tortfeasors. Such an argument is absurd on its face. In fact, the statute imposes a duty upon liquor retailers which is greater than that imposed on others, and creates a potential liability to which other persons are not exposed, see Guitar v Bieniek, 402 Mich. 152; 262 N.W.2d 9 (1978). Far from being a grant of privilege, the name and retain provision is simply a limitation on the greater liability imposed upon liquor retailers.
In addition to challenging the constitutionality of the name and retain provision, plaintiffs contend that their complaint stated a common-law cause of action for negligence. Plaintiffs' complaint alleged that defendants were negligent in failing to supervise and to train their employees to guard against unlawful sales to minors. They now argue that there exists a common-law duty to supervise and to train employees to avoid unlawful sales independent of and distinct from the liability for the consequences of an unlawful sale which the dramshop act imposes. Plaintiffs emphasize that the negligence they allege occurred prior to the sale. However, it is indisputable that, absent a sale, no cause of action against defendants would have arisen. We conclude that the allegations in plaintiffs' complaint allege nothing more than a violation of defendants' duty not to sell intoxicants to minors. Compare Manuel v Weitzman, 386 Mich. 157; 191 N.W.2d 474 (1971), and Grasser v Fleming, 74 Mich. App. 338; 253 N.W.2d 757 (1977). Because the dramshop act is the exclusive remedy for injuries arising out of unlawful sales — including sales to minors — by licensed retailers, plaintiffs have stated no common-law cause of action, Manuel v Weitzman, supra.
We do not wish to be understood as holding that no common-law cause of action survives as against private persons as opposed to liquor licensees, see Lover v Sampson, 44 Mich. App. 173; 205 N.W.2d 69 (1972).
Plaintiffs argue that they should be exempted from compliance with the name and retain provision because it would be a futile act to join the allegedly intoxicated person at this stage. Plaintiffs earlier brought an action against the alleged intoxicated person, and reached a settlement with him. If joined in the present action, the putative drunk could successfully move for dismissal, raising the prior action as a bar. We find this argument unpersuasive. Plaintiffs are not free to circumvent the requirements of the dramshop act by waiting until they have reached settlement with the drunken driver before bringing an action against the liquor licensee. They were free to bring an action against both the defendants herein and the alleged drunk, as required by the act, and then to reach a settlement with one or both parties, Buxton v Alexander, 69 Mich. App. 507; 245 N.W.2d 111 (1976). They chose not to do so. We are not disposed to relieve them of the consequences of that freely-made choice.
Affirmed. Defendants may tax their costs.