Federated Mut. Implement & Hardware Ins. Co. v. Dunkelberger, 53501

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
Citation172 N.W.2d 137
PartiesFEDERATED MUTUAL IMPLEMENT AND HARDWARE INSURANCE COMPANY, and Western Mutual Insurance Company, Appellants, v. Leonard DUNKELBERGER, d/b/a C'Ville Tap, Appellee.
Docket NumberNo. 53501,53501
Decision Date12 November 1969

Duncan, Jones, Riley & Davis, by Randy Duncan, Jr., and Thomas A. Finley, Des Moines, for appellants.

Herrick, Langdon, Belin & Harris, by Richard G. Langdon, Des Moines, for appellee.

GARFIELD, Chief Justice.

Plaintiffs appeal from dismissal of their petition at law in seven divisions seeking money damages from defendant-liquor licensee under the Iowa dram shop statutes, sections 129.2 and 123.95 Code 1966, and common law.

The ruling was based on defendant's motion to dismiss the petition on the ground each division failed to state a cause of action. The motion admitted the truth of all well pleaded, issuable and relevant facts in the petition and such facts are taken as true upon this appeal. Hagenson v. United Telephone Co., Iowa, 164 N.W.2d 853, 855--856 and citations.

The case arose out of a motor vehicle collision between an automobile owned by Boyd's Inc., driven by Philip Beckerdite and one owned and driven by Dale McDermott in which Marjorie Kroll was a passenger. Both drivers were killed and Marjorie Kroll was severely injured.

The first six divisions of the petition all allege Beckerdite was on the wrong side of the highway when the vehicles collided, was negligent and also intoxicated from liquor defendant sold him in his taproom when he was intoxicated or to a point where he became intoxicated about a half hour before the collision.

Plaintiff, Federated, etc. Insurance Co., was the insurance carrier for the owner of the car Beckerdite was driving. Plaintiff, Western Mutual Insurance Co., was the insurer of Beckerdite. (We refer to plaintiffs as Federated and Western respectively.) The petition further alleges plaintiffs investigated the accident and as a result thereof paid $40,000 to Marjorie Kroll for a release of the damages suffered by her in the accident and $27,730 to the administrator of the estate of Dale McDermott for a release of the damages suffered by the estate therein; that Western paid one third and Federated two thirds of the total amount of $67,730.

Both plaintiffs seek contribution and/or indemnity, both jointly and severally, from defendant for the amount so paid under the Iowa dram shop statutes.

Both plaintiffs also seek money damages, both jointly and severally, from defendant under the dram shop statutes as other persons injured in their property resulting from the intoxication of Beckerdite.

In the seventh division of their petition plaintiffs jointly seek indemnity and/or contribution from defendant under common law negligence.

The trial court first overruled the motion as to all divisions of the petition except the last one based upon common law negligence. Later, however, on defendant's motion to reconsider the previous ruling, the petition was dismissed in its entirety.

I. At common law it was generally held there was no cause of action against one who furnished liquor to an intoxicated person in favor of such a person or those injured by him. Cowman v. Hansen, 250 Iowa 358, 368, 92 N.W.2d 682, 688; Wendelin v. Russell, 259 Iowa 1152, 1154--1155, 147 N.W.2d 188, 190; 45 Am.Jur.2d, Intoxicating Liquors, section 553.

To supply this defect in the common law many states, including Iowa, have enacted statutes giving a right of action to persons injured in person, property or means of support by an intoxicated person, or resulting from the intoxication of any such person, against the person selling or furnishing the liquor which caused the intoxication in whole or in part. These statutes, commonly known as 'civil damage acts' or 'dram shop acts' afford remedies unknown to the common law. Wendelin v. Russell, supra; 45 Am.Jur.2d, Intoxicating Liquors, section 561.

We have two such statutes in this state. The older one is section 129.2 Codes 1962, 1966 which reads:

'Every 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 in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name against any person who shall, by selling or giving to another contrary to the provisions of this title any intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages.'

The later statute, section 123.95, which does not repeal the former one, 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 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.'

For a discussion of the self-evident points of difference between the old and the new statutes, see Wendelin v. Russell, supra, at pages 1161--1162 of 259 Iowa, page 194 of 147 N.W.2d. And for a somewhat longer discussion see 13 Drake Law Review 168.

The authorities in other states are not agreed as to whether dram shop acts are to be strictly or liberally construed. 45 Am.Jur.2d, Intoxicating Liquors, section 562, page 860. It must be deemed settled in Iowa, however, that section 123.95 is to be liberally construed, as similar statutes are in many other states.

Section 4.2 Code 1966 provides 'The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice. * * *.' To like effect and even more important here is Code section 123.1.

After quoting section 4.2 supra, Wendelin v. Russell, supra, referring to section 123.95, continues at pages 1157--1158 of 259 Iowa, page 192 of 147 N.W.2d:

'In addition it is evident the subject act should be construed liberally to aid in suppressing the mischief and advance the remedial objective which prompted its enactment. To uphold defendants' position would require the application of strict rules of construction which would, in effect, serve to advance the mischief and impair the remedy.

'Section 123.95, as finally adopted, was designed to place a hand of restraint upon those licensed or permitted by law to sell or supply intoxicants to others and protect the public, but above all to provide an avenue of relief to those offended who had no recourse or right of action under the common law. (citations)

'It is primarily a remedial or compensatory law, imposing liability without regard to all the elements of injury actionable at common law. (citations)'

The question of liberal construction of such a statute as 123.95 seems to arise most often in determining the meaning of the words 'other person injured in person or property' or like language. The Wendelin opinion holds one killed by a driver who became intoxicated from liquor sold him by defendant-tavern operators came within the class of such 'other person,' that his cause of action against the tavern owners under 123.95 survived his death and could be enforced by his executrix.

This from Wendelin v. Russell (at page 1159 of 259 Iowa, pages 192--193 of 147 N.W.2d) is deemed important here, especially as to whether Boyd's, Inc., owner of the car driven by Beckerdite, came within the class 'other person injured in * * * property:'

'It is thus evident section 123.95 means: Every husband, every wife, every child, every parent, every guardian, every employer, or every other person 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. See Village of Brooten v. Cudahy Packing Company, 8 Cir. (Minn.), 291 F.2d 284, 295. (other citations).

'* * * Under these circumstances the rule of Ejusdem Generis cannot be said to be here applicable.'

Considering somewhat further the matter of Ejusdem Generis, the rule is that where specific words Of the same nature in a statute are followed by general words the latter take their meaning from the specific words and comprehend only those things of the same kind as the specific ones. State v. Cusick, 248 Iowa 1168, 1171--1172, 84 N.W.2d 554, 556 and citations.

That the rule applies only where the specific words relate to a single class, character or nature see also Village of Brooten v. Cudahy Packing Co., supra, 8 Cir., Minn., 291 F.2d 284, 298; State v. Wells, 146 Ohio St. 131, 64 N.E.2d 593, 595; In re Mosby's Appeal, 360 Mich. 186, 103 N.W.2d 462, 465; 82 C.J.S. Statutes, § 332b, page 665, and citations n. 63; 50 Am.Jur., Statutes, section 250, page 248. Further, the rule is not to be applied inflexibly but is subject to the manifest intent of the legislature. Village of Brooten case, supra.

Regarding a Minnesota statute very similar to our 123.95, the Brooten opinion says: 'While the first five beneficiaries named in § 645.08 do have blood or marriage relationship in common and thus could be said to constitute a class, the succeeding term 'employer' is different, destroys and category of that kind, and opens the way to a broader interpretation of 'other person'.' Wendelin v. Russell, supra, cites the Brooten case approvingly for the proposition the rule of Ejusdem Generis was not there applicable. (page 1159 of 259 Iowa, page 192 of...

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