Campbell v. Village of Silver Bay, Minnesota

• Decision Date: 28 March 1963
• Docket Number: No. 16994.,16994.
• Citation: 315 F.2d 568
• Parties: Donna B. CAMPBELL et al., Appellants, v. VILLAGE OF SILVER BAY, MINNESOTA, D/B/A Silver Bay Liquor Lounge and Silver Bay Lounge, and Village of Beaver Bay, Minnesota D/B/A Beaver Bay Liquor Store and Beaver Bay Liquor Store, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

315 F.2d 568 (1963)

Donna B. CAMPBELL et al., Appellants, v. VILLAGE OF SILVER BAY, MINNESOTA, D/B/A Silver Bay Liquor Lounge and Silver Bay Lounge, and Village of Beaver Bay, Minnesota D/B/A Beaver Bay Liquor Store and Beaver Bay Liquor Store, Appellees.

No. 16994.

United States Court of Appeals Eighth Circuit.

March 28, 1963.

Philip F. Shields, of Pierro, Johnson, Pieri & Shields, Minneapolis, Minn., for appellants.

R. B. Reavill, Duluth, Minn., for appellees, James J. Courtney, Jr., Duluth, Minn., on the brief.

Before SANBORN and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

BLACKMUN, Circuit Judge.

This is an appeal from the district court's dismissal of four of five diversity causes of action asserted against two Minnesota villages operating municipal liquor stores. The suits are based upon the state's Civil Damage (or "Dram Shop") Act, Minn.Stat.Ann. § 340.95.¹ The problem presented is evidently one of first impression.

The five actions were set forth in a single complaint. They were brought, respectively, by David Campbell, the injured person; by his wife Donna; and by his three minor children. The wife's and children's actions, which claim damages only for the loss of David's services (or care) and support, are those which were dismissed and which are the subject of this appeal. The district court's opinion is reported at 202 F.Supp. 654.

We set forth chronologically the procedural history of the case:

a. As the complaint was originally drawn and filed, the first cause of action, by David, alleged illegal liquor sales by each of the defendants to Joseph Torreano; Torreano's operation, while intoxicated, of his automobile with David as his passenger; the driver's loss of control of the car; its leaving the Minnesota highway; consequent severe injuries and expense to David; and David's inability ever "to engage in gainful employment to earn money for himself." The second, by Donna, incorporated David's allegations and also alleged her marital status, her dependency "upon the good health, earning ability, and labor" of her husband, and her deprival forever of his services and support. The three for the respective children included similar allegations and assertions of lifelong dependency upon David and deprival forever of the father's care and support.

b. The defendants' original joint answer embraced general denials and, as to the wife's and the children's suits, alleged that no causes of action were stated and that any loss of support was included in and merged with David's claim.

c. With their answer the defendants filed motions to dismiss the wife's and children's actions for the same reasons of merger and failure to state causes of action and, additionally, because the damages claimed to have been sustained by David "include any amounts which otherwise would have been used by him for the support" of the respective other plaintiffs, because recovery by them "would result in a double recovery", and because the defendants thereby would be deprived of property without due process.

d. An amended complaint was filed. This eliminated the allegation in David's cause of action that he would never be able to engage in gainful employment. It added to each of the other causes of action an allegation that, as a result of David's injuries, "he will never again be able to engage in gainful employment for any purpose". The ad damnum clauses were unchanged.

e. The defendants' answer to the amended complaint followed the original except that one of the defendants alleged that David participated with Torreano in any drinking of intoxicants.

f. The motions to dismiss were heard and taken under advisement.

g. The defendants amended their answer to admit liability to David. This left in issue for his cause of action only the question of damages.

h. A stipulation and an order for entry of judgment in favor of David and against both defendants were filed. Judgment was entered and satisfied. All this took place on the same day the amended answer was filed i. Six days later the district court entered its opinion-order granting the defendants' motion to dismiss the wife's and children's causes of action. This is the one reported at 202 F.Supp. 654. It makes no mention of the defendants' amended answer to David's cause of action as set forth in the amended complaint.

We are thus confronted with the situation (1) where the injured breadwinner and his dependent wife and minor children simultaneously have sued the defendants; (2) where the husband's cause of action in the amended complaint contains no allegation as to loss of earning capacity; (3) where the defendants by their pleadings, although initially denying liability to the breadwinner, have now conceded liability to him; (4) where their liability to him has been settled and judgment entered and satisfied; and (5) where his dependents continue to assert separate causes of action under the Civil Damage Act for loss of his support.

The district court, in granting the motions to dismiss, did so on the following reasoning: that the Legislature by the Act clearly intended to give the wife and dependent children separate causes of action against the vendor making an illegal sale in the situation where the husband-father sustained damage but, because of voluntary drunkenness, had no independent right of action against the vendor; that a husband-father is obligated to support his wife and, during their minority, his children; that where the husband-father has a cause of action under the Act he may recoup his loss of earnings; that his recovery for this earnings loss is presumed to be available for the support of his dependents; that David's loss of earnings here includes the loss of support which his wife and children will sustain; that the right to recover for loss of earnings rests exclusively in David "so as to avoid double recovery of such damages"; that no one can deprive David of the right to recover not only for his injuries but also for his loss of earning capacity; that David has the power to settle with these defendants for all his damages including loss of earnings; that upon such settlement his wife and children would have no claims under the Act; that David's attempt to split his cause of action and to sue for all his damages except loss of earnings and to relegate the recovery of these to his dependents could not have been intended by the Legislature; that it did not intend, either, that a jury should struggle with the question of allocation of individual support losses when the breadwinner has the right fully to safeguard their claims; and that, with recovery by David of damages for his loss of earnings, the other plaintiffs will have sustained no damages under the Act.

The appellants argue here that there is no uncertainty in the wording of the Minnesota Civil Damage Act; that there is no qualification in its language limiting its benefits to situations where the breadwinner loses his earning capacity as a result of his own drunkenness; that a contrary interpretation would constitute improper judicial construction and violate the liberal approach which the statute deserves; that David's obligation to support does not provide a basis for denying his wife and minor children their rights of action under the statute; that David's assertion of a claim is not tantamount to recovery, for there may be defenses to his cause of action which are not assertable against his dependents; that the Act gives each of the appellants a separate right of action which is not to be confused with the one possessed by David; that David could refrain from suit and a court could not then deny his wife and minor children the right to assert their statutory claims; and that by the statute the Legislature did intend that juries struggle with the question of allocating damages.

It is perhaps desirable first to refer to two matters which have given rise to implications in the briefs and argument and which we feel account for much of the apparent confusion here:

1. Although the motions to dismiss the appellants' causes of action were made and argued before the defendants' amended answer conceding liability to David was filed, and although the district court's opinion does not refer to the existence and filing of that amended answer and thus perhaps permits us to assume that the opinion would have been the same had the amended answer not been filed, we do note that the court's conclusion was conditioned, p. 657 of 202 F. Supp., upon the right of David to amend his complaint to include averments for loss of all earnings. Whatever may have been the intendment of the opinion in that respect, we feel that the case as presented to us is one which embraces the entire record as it stood at the time of the dismissal and at the time the appeal was taken and which includes, in particular, the amended answer. We see no reason why we should adopt the unrealistic position of considering only an incomplete file exclusive of that final pleading. It follows that the situation is one where David's liability has been established by the pleadings and has been settled. We are not, then, confronted with a situation where, as the appellants argue, we have nothing more than the mere assertion of a claim by David which is denied or otherwise contested.

2. Much has been said here about the impropriety of splitting a cause of action. This, of course, is not permitted. Memurer v. Carey, 1883, 30 Minn. 458, 15 N.W. 877; Hoofnagle v. Alden, 1927, 170 Minn. 414, 419, 213 N.W. 53, 55; Myhra v. Park, 1935, 193 Minn. 290, 292-294, 258 N.W. 515, 517-518. However, where different individuals, including, even, a husband and his wife, have separate causes of action, the assertion by each of his own right does not effect a splitting. Adams v. City of Duluth, 1928, 175 Minn. 247, 221 N.W. 8,9. See Fowlie v. First Minneapolis Trust Co., 1931, 184 Minn. 82, 237 N.W. 846, 78 A.L.R. 589, and Buder v....