Thaut v. Finley , 50 Mich. App. 611 ( 1973 )

50 Mich. App. 611 (1973) 213 N.W.2d 820

THAUT
v.
FINLEY

Docket No. 15197.

Michigan Court of Appeals.

Decided November 28, 1973.

Leitson, Dean, Dean, Segar & Hart, P.C. (by Leonard B. Shulman), for plaintiff.

Otto & Otto, for defendants Dittenber.

Isackson & Neering, P.C. (by Stanley Zimostrad), for defendants Finley.

Smith & Brooker, P.C. (by James W. Tarter), for defendant Aites.

Before: DANHOF, P.J., and McGREGOR and MILES,^[*] JJ.

(ON REHEARING)

McGREGOR, J.

The recent decision of another panel of this Court, in Lover v Sampson, 44 Mich. App. 173; 205 NW2d 69 (1972), occasions our grant of plaintiff's application for rehearing in the instant case. The patent conflict between the holding in Lover and our opinion in this matter compels us to reconsider our decision.

In Lover, the Court held that defendants, not subject to strict liability under the dramshop act^[1] because not "engaged in the business of selling alcoholic beverages",^[2] may be liable for furnishing alcoholic beverages in violation of other penal statutes regulating the distribution or consumption of such beverages. Specifically, the Court indicated that defendants' violations of statutes prohibiting the furnishing of intoxicants to minors without a doctor's prescription^[3] and the consumption of alcoholic beverages on public highways^[4] could constitute negligence per se and, accordingly, give rise to a civil cause of action. In our initial opinion in the instant case, we held that violation of the statute prohibiting furnishing intoxicants to minors did not create a civil cause of action. That holding was premised upon the fact that the penal statute contained no legislative expression of intent to create a civil cause of action for its violation. Having carefully considered both the Lover decision and other pertinent authority, we are constrained to admit we erred.

In Michigan, violation of a statute is negligence per se if the statute was intended to protect a class of persons, including the plaintiff, from the type of harm which resulted from its violation. Hardaway v Consolidated Paper Co, 366 Mich. 190; 114 NW2d 236 (1962); Douglas v Edgewater Park Co, 369 Mich. 320; 119 NW2d 567 (1963); Morton v Wibright, 31 Mich. App. 8; 187 NW2d 254 (1971). This is so, even though the statute does not, as is normally the case, contain a provision respecting civil liability.

In the instant case, it would be absurd indeed to maintain that one of the purposes of the statute in question was not to protect the public from the risk of injury caused by intoxicated minors. Thus, defendants' alleged violation of the statute would, if proven,^[5] constitute negligence per se under Michigan law.^[6]

The applicability of these general principles to cases involving the violation of penal statutes regulating the distribution of intoxicants is recognized in Jones v Bourrie, 369 Mich. 473; 120 NW2d 236 (1963). In that case, the Court, in dicta, noted that, in the absence of a liquor control act creating a civil cause of action, such a cause of action could arise by virtue of the defendant's violation of penal statutes governing alcoholic beverages.^[7]

In view of the authorities discussed above, plaintiff's complaint did state a cause of action and the trial court erred in granting defendants' motion for summary judgment.

Reversed, and remanded for further proceedings consistent with this opinion.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

ON REHEARING

[1] MCLA 436.22; MSA 18.993.

[2] 44 Mich. App. 173, 180; 205 NW2d 69, 72 (1972).

[3] MCLA 750.141a; MSA 28.336(1).

[4] MCLA 436.34; MSA 18.1005.

[5] We emphasize that, to establish a violation of the statue, there must be proof that the defendant knowingly gave or furnished an alcoholic beverage to a minor.

[6] Of course, plaintiff would still need to establish that this negligence per se was the proximate cause of the damages for which he seeks to recover. Haynes v Seiler, 16 Mich. App. 98; 167 NW2d 819 (1969).

[7] Justice BLACK's separate opinion in Abendschein v Farrell, 382 Mich. 510; 170 NW2d 137 (1969), supports this reading of Jones, supra.