(concurring separately in reversal and remand). Counts I and II of plaintiffs’ complaint alleged a cause against defendant under the dram-shop statute (MCLA § 436.22 [Stat Ann 1971 Cum Supp § 18.993]) for personal injuries. Counts III and IV of the complaint alleged a cause against defendant for the same injuries, said as having arisen simultaneously out of the same evidentiary facts, for negligence by the common law. Under the dramshop statute the plaintiff may recover “actual and exemplary” damages; whereas the common-law measure is compensatory only. The plaintiffs were not put to a compelled election between the statutory counts and the common-law counts; hence today’s question is whether that which took place just before the trial (quoted seriatim, post), and thereafter prior to entry of the circuit court’s peremptory judgment of no cause, barred plaintiffs’ alleged right of recovery under counts III and IV.
The real question is whether, by accepting $5,000 from defendant in return for the fully stipulated elimination of plaintiffs’ counts for statutory violation, the circumstances of the acceptance per stipulation being as presently quoted, plaintiffs thereby split their cause in nullification of remaining counts III and IV. My response to that question brings to the fore our standing rule that the defendant may waive the defense of split cause (Wolverine Ins. Co. v. Klomparens [1935], 273 Mich 493 and Coniglio v. *169Wyoming Valley Fire Ins. Co. [1953], 337 Mich 38)1 and that this defendant did so when his counsel stipulated to the elimination for trial of counts I and II and to proceeding with trial of counts III and IV.
Prior to jury selection and after the case was called for trial, this took place:
“The Court: You may proceed.
“Mr. Tonkin [attorney for defendant]: May it please the court, speaking on behalf of the defendant, we informed your Honor that we have settled the case insofar as Counts I and II are concerned, which are allegations of violation of the Michigan Liquor Act, and I believe that that is settled.
“Your client is satisfied with that settlement, Mr. Shrauger?
“Mr. Shrauger [attorney for plaintiff]: Yes, Mr. Tonkin and your Honor, sir, they are.
“Mr. Tonkin: The case remains at issue here before your Honor as to Counts III and IV, which are, as I understand it, common law negligence, and Mr. Tyler will represent Mr. Weitzman d/b/a Roxy Bar for those two counts; is that correct, Mr. Tyler?
“Mr. Tyler [attorney for defendant] : That is correct.
“The Court: What disposition do you wish made of the aspect of the case that you are defendant?
“Mr. Tonkin: I will prepare a stipulation and order, your Honor, dismissing Counts I and II of the complaint. :
*170“Mr. Shrauger: That is satisfactory with me, your Honor.
“The Court: Very well.
“You are ready to proceed to a jury with the other counts ?
“Mr. Tonkin: I think the record should show, in the event the defendant is entitled to any credit, the record should show the plaintiffs are being paid $5,000.00. I don’t know what effect that amount has on the value of this case or whether the defendant is entitled to a setoff or anything, but I just put that on the record and I will let other attorneys worry about that.
“Is that the settlement, Mr. Shrauger?
“Mr. Shrauger: That is the settlement, yes.
“The Court: As soon as we have a jury empanelled, we will proceed to try the case on Counts III and IV; is that your pleasure, gentlemen?
“Mr. Tyler: That is correct, your Honor.
“Mr. Shrauger: That is correct.
“Mr. Tyler: Unless Mr. Shrauger wants to waive the jury.
“The Court: We have to bring the panel from the other building, so it will be a few minutes.”
After the trial of counts III and IV had taken place, and after the jury’s instructed verdict had been taken and the jury discharged, but prior to entry of judgment upon the verdict, a stipulation and order were filed, providing that “Count I and II of the above entitled cause be and the same is hereby dismissed with prejudice and without costs to any of the parties”. The stipulation and order entered thereon make no mention of counts III and IV, and proceed inferably on the theory that the latter had been tried and found wanting for some unexpressed reason.
I hold that the defendant, knowledgeable from the beginning of the settlement made as regards counts *171I and II, estopped himself from claiming- that the agreed adjustment barred plaintiffs’ right to proceed for more under counts III and IV. He could have refused to settle for any figure unless thereby he became fully absolved. He contracted instead to pay $5,000 in return for a release of his dramshop liability, if any, and elected to risk a trial of his alleged and denied common-law liability, whereunder he might or might not be held for more. I perceive no good reason why a plaintiff and a defendant cannot so stipulate, and conclude that defendant is bound to endure a trial of that which by agreement of his counsel and plaintiffs’ counsel, with approval of the court, was left open for litigatory determination.
There is no occasion for overrulement in whole or in part, or even of criticism of Jones v. Bourrie (1963), 369 Mich 473 and Kangas v. Suchorski (1964), 372 Mich 396, for the very reason given by the majority, that is, “Neither case considered the question of the liability of a tavern keeper for breach of a [common-law] duty to a patron arising out of the presence of the patron in the tavern keeper’s establishment and not necessarily involving the furnishing of liquor either to the patron or to some other person.”2
1 agree with the majority’s reasoning, supported as it is by reasoned authority, that the dramshop act did not abrogate or otherwise eliminate the common-law right of action which arises from breach of one’s common-law duty to maintain his place of business in the manner set forth in the majority opinion, and therefore concur in reversal q| the cir*172cuit court’s judgment with remand which our regular majority has provided. Plaintiffs should have costs of all three courts.
Such is the nationally accepted rule. See ink-fresh annotation, Waiver of, by Failing to Promptly Raise, Objection to Splitting Cause of Action, 40 ALR3d 108, and § 132 of i Am Jur 2d, Actions, p 651:
“The rule against splitting a cause of action is primarily for the benefit of the defendant, to protect him against a multiplicity of suits, and he may agree to a splitting of the cause of action, in which case the courts will respect the agreement, and by his conduct he may be held to have waived his right to insist upon the, rule, and a waiver will be presumed unless timely and proper objection is made.'”
There is unnecessary dicta indeed both in Jones and Kangas, and it does if authoritative tend to support view that the statutory right of action is exclusive of that which plaintiffs seek to try under counts III and IV. But any dictum, once spotted and isolated, is dangerously unsafe ground for reliance. See Cardozo, quoted in Breckon (383 Mich at 270).