Virgilio v. Hartfield , 4 Mich. App. 582 ( 1966 )

4 Mich. App. 582 (1966) 145 N.W.2d 367

VIRGILIO
v.
HARTFIELD
HARTFIELD
v.
NAEYAERT.

Docket Nos. 730, 731.

Michigan Court of Appeals.

Decided October 25, 1966.

Seymour I. Caplan (George Stone, of counsel), for defendants and third-party plaintiffs Hartfield and United Bonding Insurance Company.

Hartman, Beier, Howlett & McConnell (Eugene A. Moore, of counsel), for third-party defendant.

T.G. KAVANAGH, J.

Joseph Virgilio, a passenger in a car driven by John Naeyaert, was killed on July 10, 1963, when the car was involved in a collision. Charlotte Virgilio, Joseph's widow, brought suit in her own behalf and as next friend of their two minor daughters, Linda Joan and Charlene Rose Virgilio against Harry and Mabel Hartfield and Harry Hartfield, Jr., along with their insurance company, United Bonding Insurance Company, as well as Wallace Coan, owner of Sid and Wally's Bar and his insurance company, New Amsterdam Casualty Company.

Another suit was started against the same defendants by Helen Virgilio, Joseph's divorced wife, as next friend of their four children Vicki Lynn, Deborah Ann, Albert Joseph and Michael John Virgilio.

Both suits were brought under the dram shop act and alleged that the defendant bar owners served intoxicants to John Naeyaert when he was intoxicated and claimed damages as dependents of the decedent, Joseph Virgilio.

At pretrial the cases were ordered consolidated and the defendant's motion to add John Naeyaert as a third-party defendant was granted and third-party complaints were thereafter filed against him.

Thereafter the third-party defendant's motion to dismiss the third-party complaints was granted by the trial court and this appeal was taken from the order of dismissal.

Third-party practice is governed by the provisions of GCR 1963, 204.1 which permits a defendant to bring into the action "a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of plaintiff's claim against him."

Since no other basis for liability to the third-party plaintiff is asserted, the question for our determination is whether a bar owner who serves an intoxicated person intoxicants is a joint tort-feasor in a tort committed by the intoxicated person. We hold he is not.

The obligation of a bar owner is created by the dram shop act^[*] and allows for recovery of both actual and exemplary damages, said liability being purely statutory. Any obligation of the driver exists by virtue of some other reason and not by virtue of this statute.

The actions of the intoxicated driver have given rise to a separate suit against him on the theory of gross negligence. The defendant tavern keeper's liability is not grounded on any theory of negligence but arises because of violation of the statute. An active wrongdoer and persons liable by reason of statutory enactment are not joint tort-feasors even though there is a single indivisible injury. See Geib v. Slater (1948), 320 Mich. 316; Boucher v. Thomsen (1950), 328 Mich. 312 (20 ALR2d 1038); and Varano v. Express Freight Lines, Inc. (ED Wis 1959), 176 F Supp 71.

Among joint tort-feasors there is the right of contribution since their liability arises under the common theory of negligence. If a judgment is obtained against one tort-feasor, the other is liable to him for his pro rata share. Such is not the case here. The statute imposes liability solely on the tavern keeper and his surety and he has no right to contribution from the intoxicated driver. The tavern keeper is not jointly liable to the plaintiff in tort, therefore, he cannot be a joint tort-feasor. Husted v. Consumers Power Company (1965), 376 Mich. 41.

Affirmed, costs to appellee.

LESINSKI, C.J., and QUINN, J., concurred.

NOTES

[*] CLS 1961, § 436.22 [Stat Ann 1965 Cum Supp § 18.993].