Hughson v. O'REILLY

7 Mich. App. 324 (1967) 151 N.W.2d 888

HUGHSON
v.
O'REILLY.

Docket No. 1,336.

Michigan Court of Appeals.

Decided July 10, 1967.

Norman N. Gottlieb, for plaintiff.

Caplan & Barsky (George Stone, of counsel), for defendant.

McGREGOR, J.

In May, 1962, the appellee, a trained nurse who managed a rest home, received a message when she came home for supper, to call her husband at the bar of the Fenton Hotel. At the time, the appellee was pregnant, but she and her husband were not living together and she had filed for a divorce. She called her husband and he requested that she meet him at the bar to talk, which she did. After some conversation with her husband at the bar, she left with a mutual female friend and went to the rest home. Later, she and the friend departed to complete some errands. When they returned to the home, she was met in the parking lot by her husband. The conversation between the parties was not renewed, but instead, the appellee's husband proceeded violently to attack his wife, by striking her, knocking her down, and twisting her arm until it broke in several places. The husband was not subdued until the local police arrived on the scene and then not until the police shot the husband in the leg. The injuries to the wife were severe, requiring substantial expenditures for medical treatments, and resulting in a several-month interruption in her ability to continue gainful employment.

The appellee brought suit under section 22 of the Michigan liquor control act, CLS 1961, § 436.22 (Stat Ann 1965 Cum Supp § 18.993), alleging the proprietors of the Fenton Hotel sold alcoholic beverages to her husband after he was intoxicated and thereby contributed to his violent attack upon her. The theory of the defense was that the attack was not because of any intoxication but because of a mental or emotional disorder of the husband. The appellant pointed to the husband's history of blackouts and erratic behavior. Sitting without a jury, the trial court found the appellee's husband was intoxicated at the time of the attack on his wife, that such intoxication was caused or contributed to by the appellants, and that such intoxication was a proximate cause of the injuries inflicted upon his wife. Damages of $10,000 were awarded. This appeal disputes the findings of the facts of the trial court.

On review of an action at law tried by the court without a jury, this Court does not overrule findings of fact unless the record does not justify such findings and such findings are clearly erroneous. GCR 1963, 517.1 and 810(2); Coffee-Rich, Inc., v. Department of Agriculture (1965), 1 Mich App 225. The United States Supreme Court has defined this term:

"A finding is ``clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co. (1948), 333 US 364, 395 (68 S Ct 525, 542, 92 L ed 746, 766).

An examination of the record, with its many pages of conflicting testimony concerning the condition of appellant's husband, supports the finding of the trial court that he was intoxicated, both when served the intoxicating beverages at the hotel, and subsequently when he attacked his wife. The conclusion of intoxication was supported by evidence as to the amount of alcohol he consumed and his general demeanor throughout the evening. Testimony indicated appellant's husband had consumed more than 2 dozen drinks (shots of whiskey and beers); several of the last of the drinks were consumed at appellants' Fenton Hotel. Various witnesses testified as to his demeanor at the bar, of alternative moods of depression and exhilaration and flamboyance. There was also testimony that while the appellant's husband had suffered some mental or emotional difficulties and the marriage relationship had been "stormy", the appellant's husband had never violently attacked his wife while sober. The conclusion that the intoxication of the appellant's husband was a proximate cause of her injury was supported by the evidence.

Upon a review of the entire record, we are not convinced that a mistake has been committed by the trial court. The findings of the trial court are supported by the record.

Judgment is affirmed. Costs to appellee.

T.G. KAVANAGH, P.J., and QUINN, J., concurred.