DocketNumber： Docket 46090
Citation Numbers： 310 N.W.2d 242, 107 Mich. App. 784
Judges： Bashara, Kaufman, Banks
Filed Date： 7/23/1981
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Maceroni, Maceroni & Trickey, P.C., for plaintiffs.
Seth H. Barsky, for defendant Marguerita Moore.
Before: BASHARA, P.J., and N.J. KAUFMAN and J.L. BANKS,[*] JJ.
PER CURIAM.
Plaintiffs appeal summary judgment granted in favor of defendant Marguerita Moore.
The complaint alleged that plaintiffs' decedent was shot by defendant Thomas Curley, a Detroit *786 police officer, while the decedent and Curley were located in Moore's bar, the Postage Stamp Lounge. One count of the complaint alleged a cause of action against Moore pursuant to the dramshop act, MCL 436.22; MSA 18.993.[1] Other counts, not at issue herein, alleged causes of action against Curley and against his employer, the City of Detroit.
Moore moved for summary judgment on the grounds that plaintiffs had failed to serve Curley with process, preventing recovery under the dramshop act pursuant to the "name and retain" clause. The trial court granted the motion.
Plaintiffs' appeal of the the dismissal was decided in Woodbeck v Curley, 85 Mich. App. 605; 272 NW2d 152 (1978). This Court remanded the matter to the trial court, holding:
"Therefore, we hold that when an individual has been injured by a third party in circumstances giving rise to a dramshop action, the ``name and retain' provision need not be complied with if the plaintiff can show that he exercised due diligence in attempting to obtain service of process upon the alleged intoxicated person. Since the issue of due diligence was not ruled on below, this action must be remanded for further findings regarding that issue." Id., 609-610. (Footnote omitted.) (Emphasis in original.)
Subsequently, a hearing was held on the issue of due diligence. Counsel for plaintiffs stated that no substituted service had been attempted. A private investigator had apparently been retained to find Curley, although his efforts were not described. A Grand Rapids address, where Curley had alledgedly been spending his weekends, was visited *787 by Kent County Police with no results. Plaintiffs' counsel's business card was left at the residence but Curley did not contact him. No permanent place of abode had been found.
The trial court ruled that plaintiffs' efforts to locate Curley evinced good faith but failed to rise to the level of due diligence. Summary judgment was granted in Moore's favor and plaintiffs appeal.
The sole issue before us is whether the trial court erred in holding that due diligence was not shown. In support of this argument, plaintiffs contend that this Court's decision in Woodbeck implied that the efforts of plaintiffs amounted to due diligence. We find this argument illogical in view of the Court's holding remanding the issue of due diligence to the trial court. In addition, we find nothing in the language of the opinion that makes such a finding.
Alternatively, plaintiffs assert that the trial court abused its discretion in holding that the facts do not establish due diligence.
The Court in Woodbeck did not define the standard to be applied in determining whether or not due diligence has been shown. Woodbeck relies heavily upon Salas v Clements, 399 Mich. 103; 247 NW2d 889 (1976), in which the Court held that where a plaintiff shows that he did not know the identity of the alleged intoxicated person and that he exercised due diligence in attempting to ascertain his identity, the name and retain provision will not operate as a bar to the cause of action. The Salas opinion also does not define "due diligence" and no cases applying the test in dramshop actions has been found. Furthermore, in both Salas and Woodbeck, the Courts made no determination of due diligence but remanded the issue for the trial court's consideration.
*788 Plaintiffs rely upon criminal law in asserting that they have met the burden of proof in this case. We agree with plaintiffs that due diligence, as defined in cases addressing the prosecutor's failure to produce a res gestae witness, is the proper standard. Where the failure to produce a res gestae witness is an issue, due diligence is determined from the facts on a case-by-case basis. In his dissenting opinion in People v Pearson, 404 Mich. 698, 742; 273 NW2d 856 (1979), Justice LEVIN stated that diligence "means literally what Webster's dictionary says it means: devoted and painstaking application to accomplish an undertaking". Also see People v Johnson, 51 Mich. App. 224, 230-231; 214 NW2d 713 (1974).
It is our considered judgment that the plaintiffs did not employ "devoted and painstaking application" to find Curley, based upon the record presented. There was no mention of the efforts of the private investigator. We do not know whether Curley's family was contacted. We do not know whether the plaintiffs sought the assistance of the City of Detroit, Curley's employer at the time of the shooting. The efforts described herein are certainly less than those held to be inadequate in Pearson, supra, 716-717. Consequently, we find no abuse of discretion in the trial court's grant of summary judgment to Moore.
Affirmed. Costs to defendant Moore.
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] An order was subsequently entered allowing plaintiffs to amend the complaint against Moore by adding a claim of failure to maintain the lounge premises in a safe condition.