Evans v. Kennedy

• Decision Date: 15 October 1968
• Docket Number: No. 53010,53010
• Citation: 162 N.W.2d 182
• Parties: Earl EVANS, as Administrator of Estate of George Allen Furman, Deceased, Appellant, v. Beulah KENNEDY, d/b/a Kennedy's Inn, a/k/a Kennedy's Lounge, Iowa City, Iowa, and William Rotter, d/b/a Farmer's Inn, Hills, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 182

162 N.W.2d 182

Earl EVANS, as Administrator of Estate of George Allen Furman, Deceased, Appellant, v. Beulah KENNEDY, d/b/a Kennedy's Inn, a/k/a Kennedy's Lounge, Iowa City, Iowa, and William Rotter, d/b/a Farmer's Inn, Hills, Iowa, Appellees.

No. 53010.

Supreme Court of Iowa.

Oct. 15, 1968.

Nolan, Lucas & Nolan, Iowa City, for appellant.

Herrick, Langdon, Sandblom & Belin, Des Moines, and Hart Shulman, Phelan & Tucker, Iowa City, for appellee, Beulah Kennedy, d/b/a Kennedy's Inn, a/k/a Kennedy's Lounge.

Klockau, McCarthy, Schubert, Lousberg & Ellison, Rock Island, Ill., and Bartley, Bartley, Diehl & Thornton, Iowa City, for appellee, William Rotter, d/b/a Farmer's Inn.

LARSON, Justice.

On October 20, 1966, plaintiff Earl Evans, administrator of the estate of George Allen Furman, filed his petition against two liquor licensees seeking damages under chapter 123 of the Code of Iowa, commonly referred to as the Iowa Dram Shop Act. Therein plaintiff alleged that George Allen Furman was involved in an automobile collision on June 19, 1965, in which he received serious injuries resulting in his untimely death, that prior to the accident plaintiff's decedent Furman had been served intoxicating liquors by the defendants, their agents or employees, to a point of intoxication and while he was intoxicated, and that as a result of the conduct of defendants plaintiff's estate was damaged for the 'untimely death' of decedent in the sum of $35,500 and any amount recovered by the Sunray DX Oil Company as a result of pending litigation against the estate as a result of this collision. Judgment therefor was demanded.

On November 3, 1966, defendant Beulah Kennedy, d/b/a Kennedy's Inn, a/k/a Kennedy's Lounge, Iowa City, Iowa, hereinafter referred to as Kennedy, filed a motion to dismiss which was overruled by one of the judges of the district on February 6, 1967. On February 7, 1967, defendant William Rotter, d/b/a Farmer's Inn, Hills, Iowa, hereinafter referred to as Rotter, filed a motion to strike and make more specific, and later asked leave of court to amend his motion. On September 21, 1967, another judge of the district sustained this motion to strike from the petition of plaintiff paragraphs 9 and 10 and 'all reference to demands made in said paragraph 9 and paragraph 10 contained in the prayer for relief * * *' for the reason that they 'seek indemnification from this Defendant under provision of Chapter 123, Section 95, 1966 Code of Iowa, * * * that said statute does not provide for such damages, * * *.'

Thereafter on September 26, 1967, Kennedy filed a motion to reconsider the denial of her motion to dismiss, and on October 18, 1967, the court complied, reversed its previous order and sustained the motion to dismiss as to Kennedy. Plaintiff appeals both rulings and we consider them together.

In its ruling upon the motion to strike the trial court gave as its reason 'that Section 123.95 of the 1966 Code of Iowa, generally known as 'The Dram Shop Act', was not enacted for the benefit of one who voluntarily becomes intoxicated and then injures or kills himself while driving under the influence of intoxicating liquor or while intoxicated. That law was passed for the benefit of other persons who are injured as a result of his intoxication, such as his wife or children who lose support, or persons who are injured because of a collision he might have.' It then held that under the pleadings neither George Allen Furman 'nor his estate can recover for his wrongful death nor for any sum which the estate paid in settlement of a judgment obtained by another individual who was injured on account of his driving while intoxicated.'

The vital issue raised in this appeal is, does the Iowa Dram Shop Act, and particularly section 123.95 of the 1966 Code of Iowa, provide for a cause of action brought on behalf of the estate of a fatally-injured intoxicated person against the liquor licensees who served the decedent intoxicating liquor to a point of intoxication or while in an intoxicated condition?

Section 123.95 of the 1966 Code 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. * * *' (Emphasis added.)

I. Appellant first contends his petition was not properly subject to a motion to dismiss. He contends defendant should be required to affirmatively plead and prove that decedent's intoxication was voluntary in order to fairly deprive appellant of his right of action under chapter 123. We are unable to agree.

It is true that 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 statement of facts which could be proved in support of the claim asserted by him. Liken v. Shaffer, D.C., 64 F.Supp. 432, 446; Burd v. Board of Education of Audubon County, 260 Iowa 846, 855, 151 N.W.2d 457. The rule recognized in Burd is that a motion to dismiss is limited to the failure to state any claim on which relief can be granted. Also see R.C.P. 104(b).

However, it must be remembered that here plaintiff chose to bring his action under the provisions of chapter 123 of the Code of Iowa, not as a common-law negligence action. It is necessary, therefore, for him to bring himself within the terms of the statute. Unless there is some provision in the state which would sustain the contention that defendants were obligated to plead and prove voluntariness on the part of the intoxicated person or predicate his defense on contributory negligence or related defenses, the motion was good. We find no such provision in section 123.95 of the Code, and find the case of Weymire v. Wolfe, 52 Iowa 533, 3 N.W. 541, cited by appellant, not in point. Therein the cause was pleaded in terms of common-law liability.

Although there are frequent references by courts (including the trial court here) to the fault of the intoxicated person, we are satisfied this is not an element which must be considered to exclude him from coverage under the statute. Consideration of this element might be the reason he was excluded from coverage in the Act itself and, if this conclusion seems unjust or unfair, recourse should be to the legislature, not to us. If, then, no right of action is given an intoxicated person to recover for his injuries under the statute, we must also hold plaintiff failed to state a claim upon which relief can be granted and the trial courts' rulings were correct.

In short, decedent's volition is irrelevant to his right of action under the statute and, therefore, defendants were not required to affirmatively plead and prove voluntariness or any other of the complicity defenses applicable to common-law tort principles.

II. Appellant's prime contention is that the trial court erred in holding that the words 'or other person' in section 123.95 do not include the administrator of a decedent who became intoxicated while being served in the place of business of a licensee or permittee and as a result thereof was injured and died. As we understand this assignment, plaintiff contends he as administrator, is such an 'other person' and that he has pleaded a good cause of action which is not subject to a motion to dismiss, but requires the defendant licensees to plead and prove an affirmative defense.

Obviously, then, we have first of all a question of statutory interpretation. Did the legislature intend to extend this statutory right of action to the intoxicated party or his legal representative by the use of the term 'other person'?

It is generally held under a statute similar to section 123.95 that a right of action against a person selling liquors, for injuries to person and property from such sale, does not extend to injuries sustained by the person to whom the liquor is sold and whose intoxication is caused thereby. Perhaps the leading case construing such a statute is Brooks v. Cook, 44 Mich. 617, 7 N.W. 216 (1880). Therein Judge Cooley stated:

'The question in this case is, whether one who becomes intoxicated in a saloon, upon liquor there sold to him by the keeper, and who while in that condition has his pockets picked, may maintain an action against the keeper to recover the money taken from him?' The question arose under an act commonly called the police act. It 'provides among other things that 'every wife, child, parent, guardian, husband or other person, who shall be injured in person or property or means of support, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury.'

'The question is one of the construction of the statute. Is the person to whom the liquor is sold, etc., and who in consequence sustains an injury, one of the persons for whose benefit the statute is passed? * * * So far as the statute attempts any enumeration of persons who may sue, they all stand in some one of the domestic relations to the person to whom the liquor is sold, given or furnished. To that extent the statute unquestionably contemplates that there shall be three persons concerned: the person selling, giving or furnishing, the person receiving and causing an injury, and the person injured. But there might be other...