Ross v. Ross

• Decision Date: 14 July 1972
• Docket Number: Nos. 43262,43330,s. 43262
• Citation: 294 Minn. 115,200 N.W.2d 149
• Parties: Harvey H. ROSS and Violet E. Ross, Respondents, Rodney Alan Stigney, a minor, by Gloria Stigney Storlie, his mother and naturalguardian, and Gloria Stigney Storlie, individually, Respondents, v. Delmar ROSS, Appellant, Joel Owen Johnson, Defendant.
• Court: Minnesota Supreme Court

Page 149

200 N.W.2d 149

294 Minn. 115

Harvey H. ROSS and Violet E. Ross, Respondents,

Rodney Alan Stigney, a minor, by Gloria Stigney Storlie, his

mother and naturalguardian, and Gloria Stigney

Storlie, individually, Respondents, v. Delmar ROSS, Appellant, Joel Owen Johnson, Defendant.

Nos. 43262, 43330.

Supreme Court of Minnesota.

July 14, 1972.

Syllabus by the Court

The so-called 'Dramshop Act' or 'Civil Damage Act,' adopted as L.1911, c. 175, manifests a legislative intent to impose liability on any person who furnishes liquor in violation of the law, including those who are not commercial vendors but merely provide liquor gratuitously as an act of hospitality, if injury occurs to a third person as a result of the intoxication of the Meagher, Geer, Markham & Anderson, R. M. Frisbee and O. C. Adamson, II, Minneapolis, for appellant.

recipient who was furnished the liquor illegally.

William J. Nierengarten, Austin, for Ross.

Wallace C. Sieh, Austin, for Stigney.

Heard and considered en banc.

OTIS, Justice.

The question for decision is whether persons who are not in the business of selling intoxicating liquor are liable under the Civil Damage Act, Minn.St. 340.95, for furnishing liquor to a minor, proximately causing his death. We hold that defendants are liable and affirm.

The facts are undisputed. On July 13, 1967, defendant-appellant Delmar Ross and defendant Joel Owen Johnson ¹ purchased liquor for Delmar's 19--year-old brother, Rodney Alan Ross, which, as the jury found, resulted in Rodney's becoming intoxicated. By special verdict, the jury also found that Rodney's intoxication proximately caused his death when the car he was driving left the road. These consolidated actions were brought on behalf of Rodney's infant son and by Rodney's parents. ² The jury awarded damages in the sum of $4,680 for the son and $1,026.84 for the parents. In denying defendants' motion for judgment n.o.v., the trial court accompanied his order with a memorandum which recognized the case as one of first impression and thoroughly considered the authorities. Defendant Delmar Ross appeals from the judgment in each action.

Minn.St. 340.95, popularly known as the 'Dramshop Act' or the 'Civil Damage Act,' has never been applied to permit recovery against a person not in the business of dispensing liquor. ³ Cases decided in appellate courts of Kansas, Michigan, and Illinois under similar statutes have denied recovery. Nevertheless, in searching for legislative intent, which is the only subject of our inquiry, we are persuaded that the purpose of the act was to impose liability on every violator, whether or not he was in the liquor business.

Defendant vigorously contends that the history of the act and its inclusion in our general statutes with laws governing the commercial sale of liquor are persuasive evidence of legislative intent to exempt the casual donor who, as a host dispensing hospitality or in other social situations, dispenses liquor illegally. The classic examples are private individuals who invite guests of all ages to wedding receptions and employers who act as hosts at company picnics. It is argued that it was never the intention of the legislature to impose liability on such persons, where the problem of policing against furnishing liquor to minors and persons already intoxicated is extremely difficult. However valid these arguments may be in assessing the wisdom of the act, the fact remains that the conditions under which the act was adopted indicate a clear intent that it apply to everyone who violates the liquor laws.

1. Apparently the earliest statute on the subject was adopted as L.1858, c '* * * The amount specified in such bond is declared to be a penalty, the amount recoverable to be measured by the actual damages.'

                LXXIV.  That statute provided for a bond as a prerequisite to obtaining a liquor license and also provided (§ 5) that a licensee who violated the conditions of his bond would be 'liable for all damages done by persons intoxicated by liquors obtained from them.' 4  L.1887, c. 6, included a condition in the bond (§ 1) that the licensee would not furnish liquor to a minor but deleted reference to liability for damages. The statute governing bonds for those in the liquor business in 1911, when the Civil Damage Act was adopted, was L.1905, c. 246. It, too, provided as a condition of the bond that the licensee would not furnish liquor to minors and amended L.1887, c. 6, by imposing this further liability
                

That statute was not, for some reason, incorporated in the Revised Laws of 1905, but reference was made to it in R.L.1905, § 1524, dealing with liquor license bonds. The legislature of 1911 then proceeded to adopt four entirely separate statutes here pertinent: Chapter 83, which made it a gross misdemeanor to sell liquor to designated groups, including minors and intoxicated persons; ⁵ c. 290, making it a gross misdemeanor for any person to give intoxicating liquor to a minor and others to whom the sale would be illegal; ⁶ c. 369, making it a gross misdemeanor for any person to entice into a saloon minors or others to whom the sale of liquor is forbidden; and c. 175, the Civil Damage Act, now codified as Minn.St. 340.95.

Defendant's argument that the act was adopted as a part of the control of the sale of liquor by licensed vendors is not, in our opinion, supported by the evidence. It is true that the commissioners, whom we now designate as revisors, included the act in the chapter dealing with the control of intoxicating liquors in G.S.1913. However, it appears at the end of that chapter and under a separate heading; G.S.1913, c. 16, § 3200. It continues to be a part of the present chapter dealing with intoxicating liquor, but this is a logical and convenient place for the revisor to put it. Its location in c. 340 of our statutes does not, of course, reflect the intent of the 1911 legislature. When adopted in 1911, c. 175 contained this title:

'An Act giving a right of action to certain persons, for injuries caused by any intoxicated person, or by the intoxication of any person, against any person causing the same in certain cases.'

It is a separate statute, making no reference whatever to prior provisions of the laws regulating the sale of liquor. Had it been the intent of the legislature to confine its application to liquor vendors, it seems likely it would have been included as an amendment to the statute requiring a bond, as was done by L.1905, c. 246, or as a section of the act initially providing for a bond, as was done by L.1858, c. 74. The statute as adopted in 1911 created a cause of action against 'any person' who illegally gave or sold liquor to another person causing intoxication which resulted in damage to the plaintiff. Because automobiles were a relatively new device, the problem of driving while intoxicated was, of course, not the devastating menace it is today. That fact lends weight to the likelihood the legislature envisioned only limited application of the Civil Damage Act to householders and social drinkers. That, however, is not a reason for our misapplying legislative intent 60 years later.

2. In finding legislative intent, it is of some significance that as far back as 1882 we construed the words 'any person' in a way which did not restrict prosecutions for liquor violations to those in the business. In State v. McGinnis, 30 Minn. 48, 14 N.W.

256, we held that the statute making it illegal to sell to minors applied whether the vendor was in the liquor business or not. The statute there applied was the forerunner of Minn.St. 340.73, set forth in the appendix. Later, in State v. Stock, 169 Minn. 364, 211 N.W. 319 (1926), decided during the prohibition era, we held it was a crime to make a gift of liquor to a minor by the terms of what is now Minn.St. 340.79. The same concept was adopted in construing the Civil Damage Act in Sworski v. Coleman, 208 Minn. 43, 293 N.W. 297 (1940), where we imposed liability notwithstanding the claim that the liquor was a gift and not a sale.

The only Minnesota case which has dealt with an action under the Civil Damage Act against a defendant not in the liquor business was Dahlin v. Kron, 232 Minn. 312, 45 N.W.2d 833 (1950). However, whether the act applied to those not in the liquor business was not discussed in our opinion. We held the evidence supported a finding that the driver to whom the liquor was furnished was not, in fact, intoxicated at the time of the accident.

There is nothing in our other cases inconsistent with holding this defendant liable. Hahn v. City of Ortonville, 238 Minn. 428, 433, 57 N.W.2d 254, 259 (1953); Dahl v. Northwestern Nat. Bank, 265 Minn. 216, 121 N.W.2d 321 (1963); Hempstead v. Minneapolis Sheraton Corp., 283 Minn. 1, 166 N.W.2d 95 (1969); Heveron v. Village of Belgrade, 288 Minn. 395, 397, 181 N.W.2d 692, 693 (1970). We have held that the Civil Damage Act is both penal and remedial, an inconsistency which we have recognized but resolved in favor of a liberal construction 'to suppress the mischief and advance the remedy.' (Italics omitted.) Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261. Our decisions have imposed on licensed liquor vendors strict liability because--

'* * * such business or activity can best bear the loss occasioned by a violation of law regulating the business or activity, even though the violation was unintentional or did not involve any deviation from the standard of due care.' Dahl v. Northwestern Nat. Bank, 265 Minn. 216, 220, 121 N.W.2d 321, 324.

It may well be that the legislature in light of our present holding will amend the Civil Damage Act to permit one who is not in the liquor business to assert the defense of due care. This, however, is not our prerogative.

3. Of the three jurisdictions called to our attention which have denied recovery, only one, Michigan, has a statute such as ours. Harris v. Hardesty, 111 Kan. 291, 207 P. 188 (1922)...