Campbell v. VILLAGE OF SILVER BAY, MINNESOTA

• Decision Date: 27 December 1961
• Docket Number: No. 5-61 Civ. 76.,5-61 Civ. 76.
• Parties: David CAMPBELL, Donna B. Campbell, Leslye Campbell, a minor by her mother and natural guardian, Donna B. Campbell, Karen Campbell, a minor by her mother and natural guardian, Donna B. Campbell, and Scott Campbell, a minor by his mother and natural guardian, Donna B. Campbell, Plaintiffs, v. VILLAGE OF SILVER BAY, MINNESOTA, dba Silver Bay Liquor Lounge, and Silver Bay Liquor Lounge, and Village of Beaver Bay, Minnesota, dba Beaver Bay Liquor Store, and Beaver Bay Liquor Store, Defendants.
• Court: U.S. District Court — District of Minnesota

202 F. Supp. 654

David CAMPBELL, Donna B. Campbell, Leslye Campbell, a minor by her mother and natural guardian, Donna B. Campbell, Karen Campbell, a minor by her mother and natural guardian, Donna B. Campbell, and Scott Campbell, a minor by his mother and natural guardian, Donna B. Campbell, Plaintiffs, v. VILLAGE OF SILVER BAY, MINNESOTA, dba Silver Bay Liquor Lounge, and Silver Bay Liquor Lounge, and Village of Beaver Bay, Minnesota, dba Beaver Bay Liquor Store, and Beaver Bay Liquor Store, Defendants.

No. 5-61 Civ. 76.

United States District Court D. Minnesota, Fifth Division.

December 27, 1961.

James J. Courtney, Jr., and R. B. Reavill, Duluth, Minn., for defendants in support of said motion.

Philip F. Shields, Minneapolis, Minn., for plaintiffs in opposition thereto.

NORDBYE, District Judge.

These actions are brought by the above-named plaintiffs under the above title against the municipal liquor store defendants under the so-called Minnesota Civil Damages Act. Defendants have moved for a dismissal of the actions asserted by the wife and minor children of plaintiff David Campbell.

These actions are based upon the alleged unlawful dispensing of liquor by these defendants to one Joseph Torreano on April 21, 1961. David Campbell was a passenger in Torreano's car when an automobile accident allegedly caused by the latter's drunkenness resulted in injuries to Campbell. It is alleged that, as a result of the accident, he has sustained a severance of his spinal column in the cervical area, resulting in a permanent paralysis with a total and permanent loss of his earning capacity.

When the action was commenced, David Campbell sought recovery in the amount of $500,000 for his permanent injuries, pain and suffering, medical expenses, past and future, and, in addition he alleged:

"IX.

"As a result of the injuries sustained by plaintiff David Campbell as aforesaid, he will never be able to engage in gainful employment to earn money for himself, all to his damage in a presently undetermined amount."

Donna B. Campbell, the wife of David Campbell, in the second cause of action sought to recover $100,000 because she alleged she had been permanently deprived of his services and support by reason of his injuries.

The three named children, Leslye, 10 years, Karen, 7 years, and Scott, 3 years, in a third, fourth and fifth cause of action by their mother as natural guardian, asserted an action against these defendants, each seeking $50,000 damages by reason of the injuries sustained by their father, David Campbell, which injuries would allegedly forever deprive each of them of the father's care and support.

The defendants in their joint answer alleged that as to the separate actions of the mother and children of David Campbell, any loss of support is included in and merged with the claim of David Campbell. And at the time the answer was served, defendants moved the Court to dismiss the second, third, fourth and fifth causes of action upon the following grounds:

"(1) That said second cause of action fails to state a cause of action against defendants; (2) that any loss of means of support sustained by plaintiff is included in and merged with the cause of action of plaintiff's husband, David Campbell; (3) that the damages claimed to have been sustained by the plaintiff David Campbell in the first cause of action set forth in the complaint include any amounts which otherwise would have been used by him for the support of plaintiff; (4) that the effect of a recovery by plaintiff in said second cause of action would result in a double recovery against the defendants contrary to the laws of the State of Minnesota; (5) that if plaintiff were permitted to recover under her cause of action these defendants would be deprived of their property without due process of law.

"(1) That said third cause of action fails to state a cause of action against defendants; (2) that any loss of means of support sustained by plaintiff is included in and merged with the cause of action of plaintiff's father, David Campbell; (3) that the damages claimed to have been sustained by the plaintiff David Campbell in the first cause of action set forth in the complaint include any amounts which otherwise would have been used by him for the support of plaintiff; (4) that the effect of a recovery by plaintiff in said third cause of action would result in a double recovery against the defendants contrary to the laws of the State of Minnesota; (5) that if plaintiff were permitted to recover under her cause of action these defendants would be deprived of their property without due process of law."

The grounds asserted for the dismissal of the fourth and fifth causes of action repeat the grounds set forth as to the third cause of action.

On the same day that the motion was served, plaintiff David Campbell served an amended complaint eliminating Paragraph IX above quoted. The ad damnum clause remained the same. The second, third, fourth and fifth causes of action were amended by adding to each thereof an additional paragraph reading,

"As a result of the injuries sustained by plaintiff David Campbell as aforesaid, he will never again be

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