Cochran v. Lovelace, 55354

CourtUnited States State Supreme Court of Iowa
Citation209 N.W.2d 130
Docket NumberNo. 55354,55354
PartiesDonald D. COCHRAN, Administrator of the estate of Shirley Cochran, deceased, Larry Cochran, as surviving spouse and as father and next friend of Shae Allen Cochran and Lee Hayword Cochran, Appellees, v. Ralph C. LOVELACE et al., Appellant.
Decision Date03 July 1973

Gerry M. Rinden, of Klockau, McCarthy, Schubert, Lousberg, Ellison & Rinden, Rock Island, Ill., and Roy A. Golden, of Wasker, Sullivan, Golden, Wheatcraft & Ward, Des Moines, for Ralph C. Lovelace and Sharon K. Davis (defendants and not appealing) and for Merchants Mutual Bonding Co., appellant.

Ed Skinner, of Irish & Skinner, Altoona, for appellees.

Thomas P. Hyland, Des Moines, for Ralph Edward Jackson (defendant and not appealing).

Considered en banc.

RAWLINGS, Justice.

Plaintiffs instituted a dram shop action under The Code 1966, chapter 123 (Iowa Liquor Control Act) against defendants, liquor suppliers and surety on their bond. From trial court order overruling defendant surety's motion to dismiss as to it this appeal is permissibly taken. We reverse.

To the extent here relevant plaintiffs, by their six division petition, seek redress from defendants as liquor licensees and permittees (licensees). Also made a party defendant is Merchants Mutual Bonding Company (Merchants), surety on the statutory bond posted by said licensees.

Defendant Merchants, in its motion to dismiss, asserts it appears to a certainty plaintiff has failed to state a claim on which any relief may be granted under any statement of facts which could be proved in support of his action brought pursuant to provisions of The Code, 1966, chapter 123 as amended.

In resistance to said motion plaintiffs contend Code § 613.1 instantly affords an avenue of relief under the pari materia rule.

I. It must be inceptionally conceded this is an action not recognized at common law, being foundationed on statutory authority alone. See Williams v. Klemesrud, 197 N.W.2d 614, 616 (Iowa 1972); Wendelin v. Russell, 259 Iowa 1152, 1158, 147 N.W.2d 188 (1966) and citations; 45 Am.Jur.2d, intoxicating Liquors, § 553; 48 C.J.S. Intoxicating Liquors §§ 430--432.

II. The accident upon which plaintiffs' case is predicated occurred June 23, 1970. Thus Code chapter 123, invoked by plaintiffs, is applicable and § 123.95 provides:

'Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person or resulting from the intoxication of any such person, Shall have a right of action, severally or jointly against any licensee of permittee who shall sell or give any beer or intoxicating liquor to any such person while he is intoxicated, or serve any such person to a point where such person is intoxicated for all damages actually sustained. (Emphasis supplied).

'Every liquor control licensee shall furnish proof of financial responsibility either by the existence of a liability insurance policy or by posting bond in such amount as determined by the commission.'

We are satisfied this Act, as it relates to parties against whom the instant action can be brought is so clear, complete and free from ambiguity as to preclude any judicial construction. See Iowa R.Civ.P. 344(f)(13); State v. Hocker, 201 N.W.2d 74 (Iowa 1972); McKillip v. Zimmerman, 191 N.W.2d 706, 709 (Iowa 1971); State Ex Rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 631 (Iowa 1971); Davenport Water Co. v. Iowa State Commerce Com'n, 190 N.W.2d 583, 594--595 (Iowa 1971); Estate of Brauch v. Beeck, 181 N.W.2d 132, 134 (Iowa 1970); State v. Valeu, 257 Iowa 867, 869--870, 134 N.W.2d 911 (1965).

As aforesaid, however, plaintiffs urge § 123.95 must be construed with other statutes in pari material, citing § 613.1. By this argument plaintiffs merely seek to invoke a specific rule of statutory construction which, as denoted above, is inapplicable when the statute is clear, complete and free from ambiguity.

As concisely stated in 82 C.J.S. Statutes § 366b, at 813:

'The general rule that the meaning of a statute may be determined from its construction in connection with other statutes in pari material is not one of universal application, but is resorted to only in search of legislative intent; and the rule cannot be invoked where the language of a statute is clear and unambiguous.'

See also General Electric Co. v. Southern Construction Co., 383 F.2d 135, 138 (5th Cir. 1967), cert. den. 390 U.S. 955, 88 S.Ct. 1049, 19 L.Ed.2d 1148; Rabon v. South Carolina State Highway Dept., 258 S.C. 154, 187 S.E.2d 652, 654 (1972); 2 Sutherland, Statutory Construction, § 5201, n. 1 at 529 (3d ed., Horack, 1943); 50 Am.Jur., Statutes, § 348 at 345.

If the General Assembly, in enacting § 123.95, had meant that actions such as this be brought against licensees or permittees And their surety it could easily have so provided. This it did not do. See Hartman v. Roberts-Walby Enterprises, Incorporated, 17 Mich.App. 724, 170 N.W.2d 292, 293--294 (1969).

It is evident the legislature intended any action such as is here before us be brought only against an offending licensee or permittee. The Act says what it means and means what it says. See Williams v. Klemesrud, 197 N.W.2d at 616.

Furthermore, plaintiffs neither contend nor could they plausibly urge that Merchants is a licensee permittee under Code chapter 123.

III. Since plaintiffs lean heavily on Curtis v. Michaelson, 206 Iowa 111, 219 N.W. 49 (1928), in support of their position, we find it appropriate to here distinguish that case.

Curtis initially brought action in tort against Michaelson for damages occasioned as a result of being struck by a defendant operated public motor bus. Michaelson had, however, left the state after disposing of his property so that service of process could not be had upon him in this jurisdiction. The petition was then amended to join Michaelson's liability insurer under The Code 1927, § 5105--a26, which provided, the 'insurance bond shall bind the obligors thereunder to make compensation for injuries to persons * * * resulting from the operation of such motor carrier.' Defendant insurer demurred on the ground no liability accrued as to it until judgment was granted against its assured. Trial court sustained the demurrer and appeal followed. This court, in reversing, held that under these peculiar circumstances the injured party plaintiff could sue directly the tort feasor's insurance carrier.

We find Curtis neither persuasive nor controlling on the issue now before us. In the first place, Curtis dealt with The Code 1927, § 3105--a26, a statute which Implemented the common law. Distinguishably, in the case at bar, we deal as aforesaid with a statute Creating a cause of action unknown to common law. Furthermore, the holding in Curtis was limited to an absconding tort feasor situation, not instantly involved. That holding was later recognized by legislative enactment 1 and subsequently accorded judicial confirmation. 2 Finally on this subject Curtis dealt with a statute so general in terms as to invite judicial construction, instantly precluded for reasons heretofore stated.

IV. As aforesaid, plaintiffs' action against Merchants is statutorily foundationed and this court is accordingly restricted. Stated otherwise, Merchants is made a party defendant upon the bare allegation it is surety on a bond posted by it on behalf of licensee pursuant to Code chapter 123, the conditions of that bond being unknown. We therefore express no view as to the result had plaintiff sought redress from Merchants predicated upon terms of the bond and correspondent obligations, if any, on the part of Merchants to plaintiffs.

V. Mindful of the foregoing we now hold, plaintiffs could not be instantly accorded any relief sought as against Merchants. See Iowa R.Civ.P. 104(b); In re Lone Tree Com. School Dist. of Johnson & Louisa, 159 N.W.2d 522, 525 (Iowa 1968). In light of the foregoing, if Knott v. Peterson, 125 Iowa 404, 101 N.W. 173 (1904) be deemed in conflict with the result instantly reached it, is, to that extent, hereby overruled.

The motion to dismiss filed by defendant Merchants Mutual Bonding Company should have been sustained.


MOORE, C.J., and MASON, LeGRAND and REES, JJ., concur.


REYNOLDSON, Justice (dissenting).

Majority reasons § 123.95, The Code, 1966, grants the injured person a cause of action against the licensee or permittee and, because such action is in derogation of common law, there can be no independent or co-extensive cause of action against licensee's bondsman. Such concept of strict construction of statutes in alleged derogation of common law of course violates § 4.2, The Code. But the fallacy in that rationale is further pinpointed by the query: then where else in the code is the injured party given recourse against the statutory bondsman?

The necessary implication left by majority's opinion is that the right of action against the statutory bondsman, not being found in the code, must be fixed by the terms of the bond. Assuming but not conceding the surety can thus control its own liability, majority must necessarily be hypothesizing bond terms which are not before us.

I. Here the injured party pleaded, without specifying its terms, there was a bond.

The bonding company admitted this by moving to dismiss the petition. Sitzler v. Peck, 162 N.W.2d 449 (Iowa 1968).

A motion to dismiss is only sustainable where it appears to a certainty that a plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claims asserted by him. Rick v. Boegel, 205 N.W.2d 713 (Iowa 1973). The bond in the instant case, when secured and placed in evidence, may prove beyond dispute the injured party has an original right of action. It might well contain the same terms as the bond in Knott v. Peterson, 125 Iowa 404, 405, 101...

To continue reading

Request your trial
2 cases
  • Haafke v. Mitchell, 69483
    • United States
    • United States State Supreme Court of Iowa
    • April 11, 1984
    ...dismissing as to Merchants gave no specific reasons for its ruling. We note, however, that it cited the case of Cochran v. Lovelace, 209 N.W.2d 130 (Iowa 1973), which had held that a surety could not be sued directly under the dram shop act, because Page 384 it was not a "licensee or permit......
  • Baker v. Beal, 56782
    • United States
    • United States State Supreme Court of Iowa
    • January 22, 1975 is Knott v. Peterson, 125 Iowa 404, 408--410, 101 N.W. 173, 174--175 (1904) (overruled on an unrelated point in Cochran v. Lovelace, 209 N.W.2d 130, 133 (Iowa 1973)) where a widow sought damages for injury in her means of support against the company bonding the person whose allegedly u......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT