Ehlinger v. Mardorf
| Decision Date | 14 November 1979 |
| Docket Number | No. 62900,62900 |
| Citation | 285 N.W.2d 27 |
| Parties | Jan Marie EHLINGER, by her father and next friend, Paul Ehlinger, Appellant, v. Connie (Cook) MARDORF d/b/a Cook's Inn and Pete Strang and Clara Strang d/b/a Pete's Place and Bruce Dahlem and Timothy Dolphin, Appellees. |
| Court | Iowa Supreme Court |
David Hughes, Cascade, for appellant.
William C. Fuerste of Fuerste, Carew, Coyle, Juergens & Sudmeier, Dubuque, for appellees Mardorf and Strang.
Dell A. Richard, Iowa City, for appellee Mardorf.
H. F. Reynolds of Reynolds, Kenline, Breitbach, McCarthy, Clemens, McKay & Naughton, Dubuque, for appellees Dahlem and Dolphin.
Considered en banc.
In this case of first impression we must determine whether a minor is "incapacitated" within the meaning of section 123.93, The Code 1977, the notice of claim provision of the dram shop statute. The trial court held minority is not incapacity and also upheld the statute on constitutional grounds. Summary judgment was entered for the dram shop defendants because plaintiff did not give notice of her intention to bring suit to the dram shops or their insurers within six months of her injury. We reverse on the ground that a minor is incapacitated within the meaning of the statute. We do not reach the constitutional issue.
Section 123.93 provides:
Within six months of the occurrence of an injury, the injured person shall give written notice to the licensee or permittee or such licensee's or permittee's insurance carrier of his intention to bring an action under this section, indicating the time, place and circumstances causing the injury. Such six months period shall be extended if the injured party is incapacitated at the expiration thereof or unable, through reasonable diligence, to discover the name of the licensee, permittee, or person causing the injury or until such time as such incapacity is removed or such person has had a reasonable time to discover the name of the licensee, permittee or person causing the injury.
This provision was enacted in 1971 as part of a revision of Iowa's dram shop statutes. It did not have a counterpart in the two dram shop statutes which were repealed. See §§ 129.2, 123.95, The Code 1971.
The same persons have a dram shop cause of action under section 123.92, The Code 1977, as had one under repealed section 123.95 of the 1971 Code. Section 123.92 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 or 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.
Every liquor control licensee and class "B" beer permittee 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 department.
In the present case plaintiff Jan Marie Ehlinger alleged in her petition that she sustained injuries as a passenger in an automobile driven by Timothy Dolphin on August 6, 1975. She asserted the injuries occurred when Dolphin lost control of the vehicle as a result of intoxication and it left the road and overturned. She averred that Dolphin was served beer or intoxicating liquor while he was intoxicated or until he became intoxicated at Cook's Inn and Pete's Place in Cascade. Defendant Connie (Cook) Mardorf was alleged to be the licensee of Cook's Inn, and defendants Pete Strang and Clara Strang were alleged to be the licensees of Pete's Place.
Plaintiff was fifteen years old at the time of the accident. Although it is conceded her injuries did not prevent her from doing so, she did not give defendants notice of her intention to bring a dram shop action within six months of the accident. As next friend, her father Paul Ehlinger did notify them of her intention to bring a dram shop action approximately one year after the date of injury.
The dram shop defendants moved for summary judgment, alleging plaintiff's notice was untimely and the time had not been extended by incapacity. In resisting the motion, plaintiff alleged she was incapacitated within the meaning of the statute because of her minority. She also alleged a contrary interpretation of the statute would deny her due process of law under Iowa Const. art. I, §§ 1, 9, and U.S.Const. amend. 14. The trial court granted the motion, and this appeal followed.
Although plaintiff asserts the trial court erred on both statutory and constitutional grounds, we consider only the statutory ground because we find it is determinative of the case. We have long held we will not consider a constitutional question on appeal when another question is decisive. See Dubuque & Dakota Railway v. Diehl, 64 Iowa 635, 640, 21 N.W. 117, 120 (1884).
Under section 123.93, the six-month period for giving notice of intention to bring a dram shop action is extended "if the injured person is incapacitated at the expiration thereof . . . until such time as such incapacity is removed . . . ." The statute does not define incapacity, nor does it contain any language limiting the concept to mental or physical as opposed to legal incapacity.
We are instructed in section 123.1 that chapter 123 results from "an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose . . . ." We construe the dram shop statute liberally "to aid in suppressing the mischief of serving an excessive amount of liquor to a patron." Rigby v. Eastman, 217 N.W.2d 604, 608 (Iowa 1974).
We previously examined the meaning of incapacity under section 123.93 in relation to an allegation of incapacitation from an injury resulting in almost continuous hospitalization for the ensuing six months. In that context we said: Harrop v. Keller, 253 N.W.2d 588, 592 (Iowa 1977).
It is well established that an unemancipated minor is personally incapable of commencing suit: "Infants, being under disability, cannot conduct their own legal proceedings and the usual custom is for them to appear either by guardian or next friend." In re Estate of Beghtel, 236 Iowa 953, 958, 20 N.W.2d 421, 424 (1945). This disability is recognized in Iowa R.Civ.P. 12, which requires suits by minors to be brought by a guardian or next friend. The rule treats minority somewhat like incompetency.
Therefore plaintiff was legally barred from commencing her dram shop action personally during her minority. Consequently she was also precluded from giving defendants notice of her intention to bring the action. She could not effectively warn defendants she was going to do something she had no authority to do. Because of her minority, she was "incapable of doing those things reasonably necessary for a layman to commence suit." See Harrop, 253 N.W.2d at 592.
This situation is unaffected by her right to bring suit by next friend. The duty to give notice is personal to the minor. It is not shared by the minor's next friend. Under section 613A.5, which prescribed a duty to give notice of tort claims against municipalities, we explained the principle as follows:
The statute expressly imposes upon the injured party the responsibility for the giving of the required notice. This court has said a next friend is not a party in interest and is merely one who advances the minor's cause in the absence of a guardian. (citations) We hold, therefore, no obligation rested upon Robert Sprung in his capacity as next friend of his minor son to comply with the notice requirements of section 613A.5, I.C.A.
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...286, 291–92 (Iowa 1982) (“We avoid constitutional issues except when necessary for disposition of a controversy.”); Ehlinger v. Mardorf, 285 N.W.2d 27, 28 (Iowa 1979) (“Although plaintiff asserts the trial court erred on both statutory and constitutional grounds, we consider only the statut......
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...Within the meaning of the statute, minority is a legal disability that extends the statutory notice period. Ehlinger v. Mardorf, 285 N.W.2d 27, 29-30 (Iowa 1979). In contrast to section 123.93, section 25A.13 makes no provision for tolling the statute of limitations. Without a specific stat......
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Marriage of Kramer, In re
...equal protection analysis. We will not, however, reach a constitutional issue if a narrower ground is decisive. Ehlinger v. Mardorf, 285 N.W.2d 27, 28 (Iowa 1979). In the present situation we believe the result which Sandi seeks under the Constitution is commanded by long-standing principle......
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Chad, In Interest of
..."We have long held we will not consider a constitutional question on appeal when another question is decisive." Ehlinger v. Mardorf, 285 N.W.2d 27, 28 (Iowa 1979). Our resolution of the question presented in this division obviates the need to address Malinda's constitutional claims.3 Malind......