SCHUTZ
v.
MURPHY
Docket No. 47856.
Michigan Court of Appeals.
Decided August 12, 1980.Wisti & Jaaskelainen (by Michael E. Makinen), for plaintiffs.
*388 Bridges & Collins (by Dennis Shafer), for Arthur D. and David A. Schieber.
Before: R.B. BURNS, P.J., and MacKENZIE and J.T. KALLMAN,[*] JJ.
R.B. BURNS, P.J.
Plaintiffs filed suit for damages arising out of defendants' alleged violation of the dramshop act and of their common law duty to maintain safe business premises. Defendant Murphy was dismissed as a defendant. Thereafter, the trial court granted defendants Schieber's motion for summary judgment as to count I. It was alleged in count I that plaintiff George Schutz was served alcoholic beverages by the defendants in violation of the dramshop act, MCL 436.22; MSA 18.993, and that said violation was a proximate cause of injuries suffered by George Schutz when he was pushed by another bar patron and was caused to stumble and fall to the floor. The only claim for damages in count I was made by plaintiff Janet Schutz, as the wife of George Schutz, who alleged that she suffered a loss of consortium, support, services and other pecuniary damages as a result of her husband's injuries. The trial court's order of summary judgment entered in favor of defendants Schieber on count I is appealed.
The dramshop act, which gives to a wife, husband, child, parent, guardian or other person injured as a result of the unlawful selling of alcoholic beverages to a visibly intoxicated person the right to seek damages from a dramshop owner, was amended in 1972. The amendment provides:
"No action against a retailer * * * shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is *389 retained in the action until the litigation is concluded by trial or settlement".
The purpose of the "name and retain" amendment was to:
"`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.' 57 Mich App 367, 372; 226 NW2d 101 (1975)." Sales v Clements, 399 Mich 103, 108-109; 247 NW2d 889 (1976).
In Salas, supra, 109, the Supreme Court stated that the amendment would not be applied in a case where its application would produce "an unreasonable, unjust result, a result which is inconsistent with the purpose of the `name and retain' amendment and the dramshop act itself". Pursuant to this rule of statutory construction the Court held that the amendment did not apply when the injured person did not know the identity of the alleged intoxicated person, as it would be "patently absurd" to suggest that collusion would occur between the injured person and an alleged intoxicated person whose identity was unknown.
In Scholten v Rhoades, 67 Mich App 736, 743-744; 242 NW2d 509 (1976), this Court held that the amendment did not apply where a father had brought a dramshop action to recover damages he incurred when his minor son injured himself after consuming beer allegedly sold to him in violation of the dramshop act. The Court stated:
*390 "A parent is legally responsible for the medical bills of his minor child and to secure a judgment for such sums against the child is meaningless. Furthermore, * * * a child has no cause of action against his father or father's estate for injuries or death of the father due to the father's voluntary intoxication. Now does a parent have a cause of action against his minor child for expenses incurred by the father on behalf of the child due to the child's voluntary intoxication. While it makes good sense to name and retain a party defendant where there is a cause of action against the defendant it makes no sense at all to do so where recovery is impossible because no cause of action exists. Additionally, we more than faintly suspect that were we to hold that the plaintiff father must name and retain the minor child as a party defendant the effect would be to confuse a jury and thus deny to the parent a right of recovery which existed prior to the amendment". (Emphasis added.)
Similarly, the name and retain amendment was not applied where the plaintiffs could not retain the alleged intoxicated person because the only cause of action which could have been asserted against the intoxicated person was an action under the wrongful death act, MCL 600.2922; MSA 27A.2922, and plaintiffs were precluded from bringing a wrongful death action because they were not the decedent's personal representative. Dickerson v Heide, 69 Mich App 303; 244 NW2d 459 (1976).
Thus, the courts of this state have not applied the name and retain amendment where the plaintiff either cannot name the alleged intoxicated person or cannot retain the intoxicated person as a party defendant because the plaintiff has no cause of action against him.[1]
In the present case, though plaintiff could name *391 the intoxicated person, she could not retain him as a party defendant, because there is no precedent for allowing a suit by a wife against her husband, where the parties' marriage is intact, for damages arising out of the husband's negligent infliction of injury upon himself.
Accordingly, we hold that under the circumstances of this case a wife may maintain a cause of action pursuant to the dramshop act without naming her husband as a party defendant.
Furthermore, we find that, because the dramshop act gives a wife, husband, child or parent an action in their own name and the action is not a derivative suit, this action is not precluded by the fact that plaintiff George Schutz cannot recover damages for his own injuries under the dramshop act. Scholten, supra, 742.
Reversed and remanded for trial. Costs to plaintiff.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] See also Farmers Ins Group v Clear, 94 Mich App 655; 290 NW2d 51 (1980).