Pose v. Roosevelt Hotel Co.

• Citation: 208 N.W.2d 19,64 A.L.R.3d 860
• Decision Date: 23 May 1973
• Docket Number: No. 55258,55258
• Parties: Darla Jean POSE, Administrator of the Estate of Robert Lee Pose, Jr. et al., Appellants, v. ROOSEVELT HOTEL COMPANY, and First Avenue Company, Appellees.
• Court: Iowa Supreme Court

Page 19

208 N.W.2d 19

64 A.L.R.3d 860

Darla Jean POSE, Administrator of the Estate of Robert Lee Pose, Jr. et al., Appellants, v. ROOSEVELT HOTEL COMPANY, and First Avenue Company, Appellees.

No. 55258.

Supreme Court of Iowa.

May 23, 1973.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellants.

Simmons, Perrine, Albright & Ellwood, and Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for appellees.

Considered en banc.

MASON, Justice.

This is an appeal by plaintiffs from a judgment entered against them following an adverse jury verdict in a law action instituted to recover damages under the provisions of the Iowa Dramshop Act, section 123.95, The Code, 1966.

This litigation is a consequence of an automobile accident which occurred about 7:20 a.m. October 3, 1969, on U.S. Highway 30 approximately 12 miles west of Cedar Rapids. An automobile being operated by Dean Zillman in which Robert Lee Pose, Jr., was a passenger was struck by an oncoming automobile being driven by Donald Lee Williams. Pose received injuries from which he died September 29, 1970.

Darla Jean Pose, the surviving spouse of Robert Lee Pose, Jr., alleged in four separate divisions of plaintiffs' petition a cause of action as administrator of his estate, as conservator for their two minor children and in her individual capacity. Recovery is demanded against defendants in each division on the theory they sold or gave beer or intoxicating liquor to Donald Lee Williams while he was intoxicated, or served beer or intoxicating liquor to him to a point where Williams was intoxicated and remained intoxicated until the time of the collision referred to.

Section 123.95 upon which plaintiffs rely for a right of action provided:

'Civil liability applicable to sale or gift of beer or intoxicants by licensees. 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.' (Now section 123.92, The Code, 1973).

The record discloses that on October 1, 1969, Donald Williams, Gary Grant and Roger Hornsby met at a local Cedar Rapids bar about 9:30 p.m., each having an unknown amount of alcoholic beverages. They returned to their motel rooms at an Iowa City Holiday Inn about 2:30 a.m. October 2; they awakened about 7:00 a.m. that morning to begin their mutual work of selling encyclopedias.

Approximately 6:30 p.m. October 2 Williams and Grant met at The Stables bar in the Magnas Hotel in Cedar Rapids. Hornsby arrived a half hour later. Although Grant and Hornsby left The Stables bar on two occasions, Williams remained and apparently drank a minimum of five bottles of beer.

About 9:30 p.m. October 2 Grant and Hornsby met Williams at the Piccadilly Tavern in the defendant-Hotel Roosevelt. There, a woman who was an acquaintance of both Williams and Grant, had joined Williams, who was drinking a mixed drink. While at the Piccadilly Tavern Grant observed Williams have a minimum of seven mixed drinks.

At midnight Grant left the Tavern, purchased two six packs of beer and returned to the Cedar Rapids Holiday Inn, where Williams had reserved a room for the two men. As prearranged Williams and the woman were in the room when Grant arrived. Grant and Williams had sexual relations with her before she left the motel room at about 4:00 a.m. October 3. Williams had no more than one hour of sleep that night; the men drank none of the beer purchased by Grant.

Williams woke Grant at approximately 6:00 a.m. the morning of October 3 and informed Grant he was going to drive to Ames; before leaving Williams took a diet pill. Grant last saw Williams about 7:00 a.m. as he drove away from the Holiday Inn. The collision occurred about 20 minutes later.

Plaintiffs' motion for new trial following the jury verdict for defendants was overruled.

Plaintiffs' five assignments of error relied on for reversal are directed to instructions given as well as to the court's failure to give requested instructions, arguments of counsel and the court's rulings in regard thereto. These assignments will be stated in greater detail as hereinafter considered.

I. In their first assignment plaintiffs contend the court erred in giving instructions 4, 5 and 7 to which they objected and in failing to give their proposed instructions 1 and 2A for the reason the court's instructions required plaintiffs to prove the alcohol served Williams by defendants was a proximate cause of his intoxication at the time of the collision.

Plaintiffs question the propriety of subsection 5 of instruction 4, instructions 5 and 7. At the outset we note the general rule that all instructions must be considered together and related to each other. Leaders v. Dreher, 169 N.W.2d 570, 577 (Iowa 1969).

We set out the relevant portions of the instructions challenged:

Instruction 4. '* * * 5. That the beer or intoxicating liquor sold or given Donald Lee Williams by Defendants was a proximate cause of his intoxication.'

Instruction 5. 'One of the elements which Plaintiffs must prove by a preponderance of the evidence is that the beer or intoxicating liquor sold or given to Donald Lee Williams by Defendants Was a proximate cause of his intoxication at the time of the accident in question.

'In this connection you are further instructed that it need not be shown that said beer or intoxicating liquor was the sole proximate cause of the intoxication. It is enough if it is shown that it was a substantial cooperating, concurring or contributing cause to said intoxication. If such beer or intoxicating liquor substantially combined or concurred with other beer, intoxicating liquor or drugs later consumed by Donald Lee Williams to cause the continuance of an intoxicated condition until the time of the accident, then the defendants would be legally responsible for all the consequences of such condition.

'However, if you find that Donald Lee Williams was not intoxicated at the time of the accident, or if you find that the beer or intoxicating liquor sold or given to him by defendants was not a proximate cause of his intoxication at the time of the accident, as explained to you in these instructions, then there would be no liability on the part of the Defendants in this case.' (Emphasis supplied)

Instruction 7. 'By 'proximate cause' is meant a moving or producing cause, and an act is the proximate cause of a condition or injury sustained only when it appears that if it had not been for such act the said condition would not have been brought about or the injury sustained.'

Plaintiffs further contend the court erred in refusing to give their requested instructions 1 and 2A.

Timely objections were filed by plaintiffs to each of the above instructions. Defendants assert in their brief that plaintiffs' objections to instructions 4 and 5 lack the necessary specificity, are contradictory and fail to point out wherein the instructions are incorrect so that the court could have corrected them. Defendants further contend plaintiffs never objected to the inclusion of causation of intoxication as an element to be proven by plaintiffs in order to recover damages under the dramshop act.

Instruction 4 sets forth in six paragraphs the propositions plaintiffs must prove by a preponderance of the evidence to recover under the dramshop act. Plaintiffs' objection to this instruction begins, 'Comes now the plaintiff and objects to the Court's instruction No. 4 as proposed and to the failure to the court to instruct as contained in * * * requested instruction 1 * * * for the following reasons * * *.'

Then follows a detailed statement of the grounds urged in the trial court as an objection to the instruction.

A fair reading of the first portion of what may be designated as the third paragraph is in essence an approval of instruction 5 insofar as it permits the jury to find defendants responsible even though the beer or liquor served by defendants to Williams had oxidized or metabolized between the time of the last beer or liquor served to him by defendants and the collision.

Following the foregoing portion of the third paragraph of their objection to instruction 4 plaintiffs continue in this language: '(B)ut it fails to take into account the law that defendants are responsible for all of the actions and errors in judgment of Donald Lee Williams or any other person whom they serve beer or intoxicating liquor to while intoxicated or to a point where such person becomes intoxicated, and that if defendants place a person in such a condition or commit the acts described in the Dram Shop Act or the Dram Shop Law, they are responsible for all of the errors and mistakes in judgment of such a person following his departure including his error or mistake in judgment in the process of driving or in taking drugs or other intoxicants or drugs which are intoxicants, and that if he continues in an intoxicated condition by any reason uninterrupted like between the time of his last service--between the time he was last served by the defendants and the time of the collision or event complained of.'

In the remaining portion of the objection plaintiffs assert what appears to be a complete contradiction of the first portion of the objection mentioned supra. Stated otherwise, plaintiffs first say the court properly states defendants would be liable even though the beer or intoxicating liquor served by defendants to...