Dahn v. Sheets , 104 Mich. App. 584 ( 1981 )

104 Mich. App. 584 (1981) 305 N.W.2d 547

DAHN
v.
SHEETS

Docket No. 49031.

Michigan Court of Appeals.

Decided March 16, 1981.

Fortino, Plaxton & Moskal, for plaintiffs.

Robert G. Chaklos, for defendants.

Before: BRONSON, P.J., and J.H. GILLIS and C.L. BOSMAN,^[*] JJ.

BRONSON, P.J.

Plaintiff Eleanor Dahn, guardian of Daniel Allen Nerio, instituted suit against defendants in her own right and on behalf of her ward in the Saginaw County Circuit Court pursuant to the dramshop act.^[1] MCL 436.22; MSA 18.993. The action was commenced as a result of a February 7, 1975, automobile accident. Defendant Robert Sheets was the driver of the automobile. The mishap occurred near the Bintz Apple Mountain Bar where Sheets and Daniel Nerio, aged 18 and 17 respectively, had been drinking before the accident. Nerio was severely injured, suffering permanent brain damage resulting in speech loss and loss of motor coordination. The trial court found him incompetent to testify at the time of trial.

The action against Robert and Jack Sheets, who were named defendants pursuant to the "name and retain" provision of the dramshop act, was settled prior to trial.

Following the close of proofs, defendants moved for a directed verdict as to Daniel Nerio's claim, which was granted. The jury returned a "no cause" verdict as to Eleanor Dahn's claim. The trial court denied the motion for a new trial, and this is an appeal as of right from that order. The facts will be further detailed as they related to the individual issues raised.

Plaintiffs first contend that the dead man's statute, MCL 600.2166; MSA 27A.2166, precluded the testimony of Robert Sheets, Charles Roberts, and Sharon Kowaleski as the court had ruled Nerio incompetent to testify. Sheets, as noted earlier, was the driver of the car in which Nerio was injured. Roberts and Kowaleski were employees of the Bintz Apple Mountain Bar on the day of the incident. The trial court held that there was sufficient corroborative testimony introduced so that there was no dead man's statute problem. See, for instance, Sherberneau v Metropolitan Life Ins Co, 44 Mich. App. 339; 205 NW2d 213 (1973), Hilliker v Dowell, 54 Mich. App. 249; 220 NW2d 712 (1974).

We do not address the trial court's rationale for allowing the testimony because we agree with the panel of our colleagues who determined that the dead man's statute has been "impliedly abrogated" by the Supreme Court's adoption of MRE 601 and contemporaneous abolishment of GCR 1963, 608. James v Dixon, 95 Mich. App. 527; 291 NW2d 106 (1980).^[2] MRE 601 renders an individual incompetent to testify only if he or she does not possess "sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably". This rule is clearly in conflict with MCL 600.2166; MSA 27A.2166. Since rules of evidence are matters involving judicial practice and procedure, they take precedence over conflicting statutes. James, supra, 530, Perin v Peuler (On Rehearing), 373 Mich. 531, 541-542; 130 NW2d 4 (1964).

Plaintiffs submit that this Court should determine whether "questions of public policy as well as basic justice" should preclude testimony under the circumstances of each case. We reject this approach because there is nothing in the language of MRE 601 suggesting that this is permissible. Furthermore, the basic policy considerations are substantially similar in every case in which one party is attempting to exclude evidence via the dead man's statute. Plaintiffs want the evidence excluded because it is hard or difficult to rebut, and defendants want it admitted because otherwise their defense will be substantially weakened or even destroyed.^[3]

In the instant case, Sheets testified that the intoxicant purchased, beer, was paid for with $5 which he owed Nerio and that the purchase was in satisfaction of the debt. Roberts, the manager of Bintz's bar, testified that his recollection was that Nerio both ordered and paid for the beer. Kowaleski testified that Nerio paid for the beer and picked up the change from the five-dollar bill placed on the bar. Without this testimony, all the defendants could hope for was that the jury would not be convinced of their liability from plaintiffs' presentation of their case. We do not find that either "public policy" or "basic justice" favors the substantial impairment of a potentially viable defense.^[4]

Plaintiff Daniel Nerio asserts that the trial court erred in directing a verdict against him on the basis that he was a noninnocent party under the dramshop act.^[5] We agree. In deciding whether to grant a motion for a directed verdict, the trial judge must consider the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party. Caldwell v Fox, 394 Mich. 401, 407; 231 NW2d 46 (1975), Tiffany v The Christman Co, 93 Mich. App. 267, 284-285; 287 NW2d 199 (1979).

Reasonable minds could have disagreed on the proper resolution of this case in light of the testimony adduced. Keith Doering stated that while at the Bintz Apple Mountain Bar he saw Sheets and Nerio, and both appeared to be intoxicated. Doering saw Sheets take money out of his wallet and put it onto the bar. Later, he saw beer sitting in front of Sheets and Nerio, and the money was gone. Moreover, at the time this incident arose, the legal drinking age was 18, while Nerio was only 17 years old. From this testimony, the jury could have concluded that Sheets bought the beer and that Nerio was merely drinking with him. For Nerio to be considered a noninnocent person for purposes of the dramshop act, he must have actively participated in Sheets' intoxication. Active participation is not made out by evidence only tending to show that plaintiff drank with the intoxicated driver. Todd v Biglow, 51 Mich. App. 346; 214 NW2d 733 (1974), lv den 391 Mich. 816 (1974).

In its opinion denying plaintiffs' motion for a new trial, the court stated that since no evidence was presented by Nerio to refute the testimony that he had purchased the beer, he could not be considered an innocent party under the dramshop act. However, the jury was not obligated to accept the defense witnesses' testimony. Both Kowaleski and Roberts were former employees of the tavern, and the jury might have declined to believe their testimony for this reason. This is particularly true in light of the fact that both former employees affirmatively stated that Nerio handed the money to pay for the beer, while Sheets indicated that the five-dollar bill was merely placed on the bar. Nor was the jury required to accept Sheets' testimony that the beer was purchased in satisfaction of a debt he owed Nerio. The record does not indicate that Nerio told Sheets that he agreed that the beer represented satisfaction of the debt. Finally, as Sheets was the individual who actually controlled the money, a jury could conclude that the beer would have been purchased without regard to Nerio's consent or lack thereof.

Plaintiff was not required to offer testimony affirmatively rebutting any aspect of the defense so long as sufficient evidence was introduced to make out a prima facie case of liability. Here, there was evidence introduced from which the jury could have found Nerio not culpable for purposes of a dramshop action. The improper direction of the verdict cannot be considered harmless error as the jury could have concluded that Dahn was not injured by the illegal sale of an intoxicating beverage to Sheets but, rather, that only Nerio was.

Plaintiff Dahn contends that she is also entitled to a new trial because she was prejudiced by the trial court's direction of a verdict against Nerio and statement to the jury that Nerio was a noninnocent party under the terms of the dramshop act. Both the Michigan Supreme Court and this Court have ruled that a trial court may direct a verdict as to one of several codefendants. Sloan v Detroit United R Co, 172 Mich. 68, 73; 137 N.W. 691 (1912), Annis v Reiser & Co, 209 Mich. 512, 514-517; 177 N.W. 212 (1920), Light v Schmidt, 84 Mich. App. 51, 59; 169 NW2d 304 (1978). While we fail to find any Michigan cases holding that a trial court may properly direct a verdict against one of joint plaintiffs, there is no reason to apply a different standard in such situations. See 88 CJS, Trial, § 257, p 671, which discusses direction of a verdict for or against one or more of several parties without distinguishing the position of joint plaintiffs and defendants. Where one of two or more plaintiffs fails to present sufficient evidence against a defendant, it would be error not to direct a verdict in favor of the defendant as to said plaintiff.

Plaintiff Dahn merely speculates that she was prejudiced by the improper direction of a verdict against Nerio without pointing to anything in the record which suggests even a probability of prejudice, let alone actual prejudice. In his instructions to the jury, the trial judge made it clear that the direction of a verdict against Nerio did not deprive Dahn of a right to recover. Consequently, we decline to reverse the jury verdict against Dahn on this basis.

Plaintiffs also argue that in light of Placek v Sterling Heights, 405 Mich. 638; 275 NW2d 511 (1979), a person's participation in bringing about the intoxication which led to his injury should not be a bar to recovery. We disagree. The dramshop act is the legislatively-created exclusive remedy for injuries arising out of unlawful sales of intoxicating beverages by licensed retailers, and the cause of action is not based on negligence. See Rowan v Southland Corp, 90 Mich. App. 61; 282 NW2d 243 (1979). Placek only has applicability to common law tort actions sounding in negligence. If the comparative negligence doctrine is to be applied in dramshop actions, the Legislature must mandate this change.

Plaintiff Dahn also claims that the trial court's instruction informing the jurors that they would be formally excused at five o'clock and, if they had not reached a verdict, would resume deliberations Monday was coercive and unconstitutionally impinged on the right to a jury trial. No objection was lodged against this instruction. As such, Dahn has a greater burden to show actual prejudice caused by the instruction than would normally be the case. Reed v Stretten, 69 Mich. App. 519, 526-527; 245 NW2d 117 (1976). We find that plaintiff Dahn has failed to meet her burden. The situation here is undistinguishable in any persuasive manner from that in Zeitz v Mara, 290 Mich. 161, 164; 287 N.W. 418 (1939), where the Supreme Court found a similar instruction noncoercive. Moreover, the trial judge's instruction in this case had a lesser tendency to coerce than the one upheld in People v Coles, 28 Mich. App. 300, 304; 184 NW2d 214 (1970). We find no error.

Affirmed as to plaintiff Dahn individually; reversed as to plaintiff Dahn on behalf of Nerio. No costs, neither party having prevailed in full.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] For purposes of this opinion, the claim brought on behalf of Nerio will be called Nerio's claim and he will be referred to as plaintiff Nerio.

[2] The plaintiffs' argument that the James Court was wrong in concluding that MRE 601 impliedly abrogated the dead man's statute is based on a faulty premise. The James Court did not conclude, as plaintiffs contend in their brief, that GCR 1963, 608, along with the dead man's statute, itself, was impliedly abrogated. Rather, the Supreme Court explicitly repealed this rule effective March 1, 1978 — the same date the Michigan Rules of Evidence went into effect. See, 402 Mich. cxxxiii. Partly because of the explicit repeal of GCR 1963, 608, this Court, in James, ruled the dead man's statute impliedly abrogated.

[3] Of course, the situation used as an example could be reversed, that is: the defense may wish to exclude the testimony, and without said testimony plaintiffs have no case or a substantially weakened one.

[4] It is generally agreed that dead man's statutes are anachronisms perpetrating injustice, rather than preventing injustice as plaintiffs argue. See McCormick, Evidence (2d ed), § 65, pp 142-144.

[5] The dramshop act does not provide for a cause of action for a person who has actively participated in the events leading to the intoxication of the individual responsible for his injuries. This rule is usually applied to prevent the intoxicated person, himself, from bringing an action for his injuries. However, it is not so limited. See Morton v Roth, 189 Mich. 198; 155 N.W. 459 (1915), Kangas v Suchorski, 372 Mich. 396; 126 NW2d 803 (1964).