Appeal from Wayne, James Montante, J.
Bronson, P. J., and Bashara and M. F. Cavanagh, JJ.
1. Action -- Dramshop Act -- Dismissal of Action -- Court Rules -- Service of Process -- Statutes.
An action brought under the dramshop act must name and retain in the action the alleged intoxicated person or the action may not be maintained; therefore, an action should be dismissed as to the defendant bar owners where the alleged intoxicated person was not retained in the action because he was not served with process even though the failure of service was not attributable to the plaintiffs (MCLA 436.22; MSA 18.993; GCR 1963, 102.4).
2. Action -- Dramshop Act -- Dismissal of Action -- Common Law Remedy -- Maintenance of Safe Premises -- Statutes.
A plaintiff, injured in an altercation in the defendant's bar, whose cause of action under the dramshop act is dismissed because the alleged intoxicated assailant is not retained in the action pursuant to the statute, still has a right of action against those defendants for violation of the common law duty to provide safe premises; such action is in addition to any remedy afforded by the dramshop act which has for its purpose the recovery of damages sustained as the result of an unlawful sale of intoxicants (MCLA 436.22; MSA 18.993).
The opinion of the court was delivered by: Cavanagh
Complaint by Joseph Spaccarotelli by his next friend Dollie Spaccarotelli, and by Dollie Spaccarotelli, against Frank J. Ferdibar, Gertrude D. Ferdibar, and Gary Ish, for damages for injuries caused in an altercation in defendants Ferdibar's place of business. Defendant Ish was not served with process and the case was dismissed as to him. Defendants Ferdibar moved for summary judgment, and appeal by leave granted from denial of that motion.
This is an action under the dramshop act, MCLA 436.22; MSA 18.993, as amended. On November 5, 1972, plaintiff Joseph Spaccarotelli got into a fight with Gary Ish in defendants' bar. Plaintiffs commenced this action for injuries allegedly caused to Joseph Spaccarotelli in that incident.
Defendants were timely and properly served with process. However, in spite of due diligence exercised by plaintiffs to locate and serve the alleged assailant, Gary Ish was not served with process. Accordingly, the cause was dismissed or stood to be dismissed against him after the summons became invalid pursuant to GCR 1963, 102.4, as amended, effective July 1, 1972. Thereafter, defendants moved for summary judgment of dismissal as to them on the grounds that Ish had not been "named and retained" in the action as required by a 1972 amendment to the dramshop act, 1972 PA 196; MCLA 436.22; MSA 18.993.
In its opinion denying the motion, the trial court stated:
"By reason, therefore, of the statute, it is claimed that the cause of action directed against the dramshop owners must be dismissed.
"It is the position of the plaintiffs that the dismissal is through no fault of his , that it is by operation of law and that for this court now to dismiss the case would leave him remedyless.
"The point is an interesting one. I have no cases on hand. I appreciate that it is necessary to have some precedential authority for guidance of the trial bench. Therefore, I appreciate the interest that you lawyers have in this problem and your willingness ...