Philips v. Aretz
| Decision Date | 04 June 1943 |
| Docket Number | No. 33455.,33455. |
| Court | Minnesota Supreme Court |
| Parties | PHILIPS v. ARETZ et al. |
Appeal from District Court, Hennepin County; Vince A. Day, Judge.
Action by Richard James Philips, a minor, by Mabel Philips, his mother and natural guardian, against Henry J. Aretz and another to recover for the death of the minor's father. From an order sustaining plaintiff's general demurrer to defenses set up in defendants' answer, the defendants appeal.
Affirmed.
Daniel F. Foley and Louis Sachs, both of Minneapolis, for appellants.
Hyman M. Juster, of Minneapolis, for respondent.
During the time herein stated, defendant Henry J. Aretz was engaged in the sale of intoxicating liquor at 4730 Excelsior Boulevard in the village of St. Louis Park. He was licensed both as an "on sale" and "off sale" dealer. The other defendant is the surety on his liquor dealer's bonds given in conformity with the requirements of the statute and an ordinance of the village. The complaint charges than on January 8, 1941, shortly after midnight, Aretz, in violation of the ordinance and the statute, sold liquor to plaintiff's father, one Bertrem Philips, who as the result of drinking the same became "sick, confused, helpless and intoxicated." On his way home, because of his intoxicated condition, he was struck by a passing motorist and died a few hours later.
Plaintiff is five years of age and brings this action by his mother as his natural guardian. That the complaint adequately states a cause of action is not questioned by either defendant. Rather, the problem presented is whether paragraph III of Aretz's answer and paragraph V of the surety's answer, which are identical, state a defense to plaintiff's cause. The court sustained plaintiff's general demurrer thereto, and defendants have appealed from that order.
That part of the respective answers to which the demurrer is directed alleges that shortly after Bertrem's death plaintiff's mother as special administratrix of her husband's estate, brought an action against one Costigan, the owner and operator of the automobile which struck Bertrem, claiming damages in the amount of $10,000 under the death by wrongful act statute. In that action she claimed that Costigan's negligence caused her husband's death. After issues were joined in that action and while it was pending for trial, an agreement was reached between the plaintiff as administratrix and Costigan whereby the latter paid plaintiff $3,250 in full settlement of that action. She reported the settlement to the court, and it was duly approved. In concluding that settlement she executed and delivered to Costigan "a full release from said cause of action and a dismissal of said action with prejudice and without costs to either party." Pursuant to the settlement, the court directed that out of the recovery obtained $702.23 should go to the present plaintiff as his share thereof, and this direction was carried out and the money deposited in the Farmers & Mechanics Savings Bank of Minneapolis to the child's credit. Later, Mrs. Philips reported all her acts in this matter to the probate court, her report was approved, and she was thereupon duly discharged as such representative.
The only question presented is whether the settlement of the Costigan action operates as a bar to recovery in this case.
The death by wrongful act statute, Minn. St.1941, § 573.02 (Mason St.1940 Supp. § 9657), so far as here material, provides:
The provision of the liquor ordinance requiring the giving of a bond is substantially the same as that of Minn.St.1941, § 340.12 (4), (Mason St.1940 Supp. § 3200-26(d)), which reads "That the licensee will pay to the extent of the principal amount of such bond any damages for death or injury caused by or resulting from the violation of any provisions of law relating thereto, and in such cases recovery under this subdivision may be had from the surety on his bond; the amount specified in such bond is declared to be a penalty, the amount recoverable to be measured by the actual damages."
Pursuant to statutory and ordinance requirements, Aretz, as principal, and the corporate defendant, as surety, executed the bonds involved in this litigation. The "on sale" bond is in the penal sum of $4,000, conditioned that if the principal "shall (a) obey the laws relating to such licensed business"; and "(d) shall pay to the extent of the principal amount hereof any damages for death or injury caused by or resulting from the violation of any provisions of law relating thereto," then the obligation should be void, otherwise to remain in full force and effect. The "off sale" bond is in the penal sum of $2,000 but is otherwise and in substance conditioned, insofar as the present cause is concerned, the same as the "on sale" bond.
1. Defendants' position is that "for one loss or injury there can be but one remedy or recovery," and, since Costigan has been released, "he being a joint tortfeasor or a concurrent tortfeasor, as the case may be," therefore and thereby they were also released. They cite and rely upon such cases as Smith v. Mann, 184 Minn. 485, 239 N.W. 223, and Driessen v. Moening, 208 Minn. 356, 294 N.W. 206, in support of their claim. In the Smith case, 184 Minn. 486, 239 N.W. 223, we said: "For plaintiff it is conceded, necessarily, that an injured party who has accepted satisfaction, `from whatever source it may come', cannot recover again for the same injury." (Italics supplied.) In the Driessen case we held that, since plaintiffs had received quid pro quo for their asserted wrongs, there being no fraud,...
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Village of Brooten v. Cudahy Packing Company
...v. Coleman, 1940, 208 Minn. 43, 293 N.W. 297; Mayes v. Byers, 1943, 214 Minn. 54, 7 N.W.2d 403, 144 A.L.R. 821; Philips v. Aretz, 1943, 215 Minn. 325, 10 N.W. 2d 226; Fox v. Swartz, 1949, 228 Minn. 233, 36 N.W.2d 708; Cavin v. Smith, 1949, 228 Minn. 322, 37 N.W.2d 368; Stabs v. City of Towe......
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Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246
...establishing the right to recover to the extent of the penalty provided for under § 340.12 in line with our decision in Philips v. Aretz, 215 Minn. 325, 10 N.W.2d 226. In this connection it is to be noted that the maximum recovery permitted under M.S.A.1949, § 573.02, at the time of the acc......
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Stabs v. City of Tower, 35013
...obligee in such bond or policy.' As amended by L.1945, c. 313, § 1.3 The rule of the Mayes case, supra, was reiterated in Philips v. Aretz, 215 Minn. 325, 10 N.W.2d 226.4 This is the general rule, but there may be some exceptions applicable in particular situations. See, § 340.11, subd. 9.5......
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Stabs v. City of Tower, 35013.
...in such bond or policy.’ As amended by L.1945, c. 313, s 1. 3. The rule of the Mayes case, supra, was reiterated in Philips v. Aretz, 215 Minn. 325, 10 N.W.2d 226. 4. This is the general rule, but there may be some exceptions applicable in particular situations. See, s 340.11, subd. 9. 5. T......