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02/10/76 NASH v. CLAGGETT

February 10, 1976

NASH
v.
CLAGGETT



Appeal from Wayne, Charles S. Farmer, J.

Leave to appeal applied for.

Bronson, P. J., and Bashara and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. Parties -- Statutes -- Amendments to Statutes -- Dramshop Act -- Addition of Parties.

A 1972 amendment to the dramshop act, which provides that no action shall be commenced under the act without the alleged intoxicated person being named and retained as a defendant, does not apply to an action commenced prior to the effective date of the amendment (MCLA 436.22; MSA 18.993).

2. Pleading -- Amendment of Pleadings -- Court Rules.

A plaintiff should be freely granted leave to amend his complaint absent prejudice to the defendant in the form of surprise, undue delay, bad faith, or undue prejudice by virtue of the magnitude of the amendment; therefore, a motion by a plaintiff representative of a decedent in a dramshop action, to amend the complaint to make clear that the plaintiff claimed injury from the alleged illegal sale of alcohol to the decedent as well as to the allegedly negligent intoxicated party, was erroneously denied where the complaint alleged illegal sales to both persons and the motion was made in response to the defendant's motion to prevent testimony regarding the intoxication of the allegedly negligent party (GCR 1963, 118).

The opinion of the court was delivered by: Cavanagh

Complaint by Denise M. Nash, for herself and as next friend of Kenneth Nash and Kevin Nash, against Richard L. Claggett, Salvatore Mancuso, and The Fidelity & Deposit Company for damages under the dramshop act. Roger Malasky was subsequently added as a party defendant. Judgment for plaintiff against Malasky, and judgment of no cause of action as to the other defendants. Plaintiff appeals from the judgment of no cause of action.

This appeal involves the dramshop act, MCLA 436.22; MSA 18.993, and the effect of the 1972 amendments, 1972 PA 196, on suits instituted prior to the amendments.

On December 31, 1971, plaintiff commenced a dramshop action against defendants. On the same day plaintiff also commenced a wrongful death action against Roger Malasky. Both actions arose out of the death of plaintiff's husband, Robert Nash, on November 14, 1970. Both cases involved the same events and were assigned to one Judge, who at pretrial on September 7, 1973, consolidated both actions for trial.

On September 18, 1973, defendants moved to compel the addition of Robert C. Nash and Roger Malasky as defendants in the dramshop action pursuant to the "name and retain" provision of the 1972 amendments, 1972 PA 196 (eff. June 29, 1972). This provision requires that the alleged intoxicated persons who are alleged to have caused injury to the plaintiff be named defendants and retained in the action until the litigation is concluded. The trial court denied the motion as to Robert C. Nash, the dead husband, but granted it as to Roger Malasky and ordered that Malasky be added as a defendant in the dramshop action and that the wrongful death action be added as another count in the dramshop complaint.

The two cases were assigned for trial on April 17, 1974, before a second Judge. On April 17, 1974, a settlement apparently was reached in the wrongful death action. However, no order was prepared, signed or entered until May 24, 1974. Also on April 17, defendants moved for a continuance. Trial was rescheduled for April 23, 1974, before a third Judge.

On April 23, 1974, the trial court granted Malasky's oral motion that the wrongful death action be dismissed "in conformity with the settlement entered into the other day". From that time on neither counsel for Malasky nor Malasky participated in or, apparently, was even ...


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