Wendelin v. Russell

• Decision Date: 13 December 1966
• Docket Number: No. 52381,52381
• Citation: Wendelin v. Russell, 259 Iowa 1152, 147 N.W.2d 188 (Iowa 1966)
• Parties: Freida Betty WENDELIN, as Executrix of the Estate of George L. Wendelin, Deceased, Appellee, v. Roy RUSSELL, d/b/a Roy's Tavern, Macedonia, Iowa, and Shirley Russell, Appellants, and Donald Darwin McGinnis, Defendant.
• Court: Iowa Supreme Court

Page 188

147 N.W.2d 188

259 Iowa 1152

Freida Betty WENDELIN, as Executrix of the Estate of George L. Wendelin, Deceased, Appellee, v. Roy RUSSELL, d/b/a Roy's Tavern, Macedonia, Iowa, and Shirley Russell, Appellants and Donald Darwin McGinnis, Defendant.

No. 52381.

Supreme Court of Iowa.

Dec. 13, 1966.

Herrick, Langdon, Sandblom & Belin, by Richard G. Langdon, Des Moines, and Smith, Peterson, Beckman & Willson, by Raymond A. Smith, Council Bluffs, for appellants Roy Russell, d/b/a Roy's Tavern, and Shirley Russell.

Hess, Peters, Sulhoff & Walker, by Manning Walker, Council Bluffs, and Milton Hanson, Avoca, for appellee.

RAWLINGS, Justice.

By an action at law plaintiff-administrator (executrix) seeks damages by reason of the death of her husband George L. Wendelin.

The petition is in two counts. By count I plaintiff-administrator asks damages from defendants Roy and Shirley Russell under each and both of our Dram Shop Acts alleging that October 20, 1965, they supplied whiskey and beer to one Donald Darwin McGinnis to the point of his intoxication, that he then operated a motor vehicle which, by reason of his intoxication, collided with the automobile of plaintiff's decedent, causing his death.

Count II, not here involved, alleges a separate cause of action by plaintiff-administrator against defendant McGinnis based upon alleged negligence at common law.

Defendants Russell filed a motion to strike, seemingly directed to the entire petition but actually challenging the first count alone. The trial court so considered it, overruled the motion, and defendants Russell were granted leave to appeal. We shall here deal with division I as plaintiff-administrator's cause of action.

The first question presented is whether an estate representative of a person killed by reason of intoxication of another has a cause of action under the Dram Shop Act, section 123.95, against the party or parties who supplied the beer or intoxicants.

I. At common law it was generally held there was no cause of action against one who furnished liquor in favor of those injured by an intoxicated person to whom the liquor had been causatively supplied. Cowman v. Hansen, 250 Iowa 358, 368, 92 N.W.2d 682; 48 C.J.S. Intoxicating Liquors § 430, page 716; and 30 Am.Jur., Intoxicating Liquors, sections 520--521, pages 821--822. But see 12 Baylor L.Rev. 388.

In order to correct this apparent fault in the common law many states, including Iowa, enacted what are commonly referred to a civil damage statutes or dram shop acts. See section 29, chapter 114, and section 8 chapter 115, Acts of the Sixtieth General Assembly (section 123.95, Code, 1966), and section 129.2, Code, 1962. See also 4 So.Dak.L.Rev. 149.

II. As previously disclosed plaintiff has not asserted a common law right of action, but elected to stand upon such pleaded statutory rights and remedies as she may have. We are accordingly restricted.

This court has said: '* * * in determining the meaning of any particular statute all provisions of the act and other pertinent statutes are to be considered.' Cook v. Bornholdt, 250 Iowa 696, 698, 95 N.W.2d 749, 751.

Section 123.95, here invoked by plaintiff, 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.'

Other relevant legislative enactments, contained in chapter 611, Code, 1962, state as follows:

Section 611.20: 'All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.'

Section 611.21: 'The right of civil remedy is not mreged in a public offense, but may in all cases be enforced independently of and in addition to the punishment of the latter.'

Section 611.22: 'Any action contemplated in sections 611.20 and 611.21 may be brought, * * * by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the time it would have accrued to the deceased if he had survived.'

Then section 635.9 provides in part: 'When a wrongful act produces death, damages recovered therefor shall be disposed of as personal property belonging to the estate of the deceased, * * *.'

See also section 613.11, Code, 1962, amended by the Sixty-First General Assembly, chapter 427 (section 613.15, Code, 1966).

III. This court has previously held the provisions of chapter 611 should be liberally construed to permit substitution of the representative of a deceased litigant in his place, the object of section 611.22 being to render available to such representative All the remedies to which the litigant, had he lived, might have resorted. Fitzgerald v. Hale, 247 Iowa 1194, 1197--1204, 78 N.W.2d 509, and Wood v. Wood, 136 Iowa 128, 132, 113 N.W. 492, 12 L.R.A., N.S., 891. See also Reinhardt v. City of New Haven, 23 Conn.Supp. 321, 182 A.2d 925, 926--927.

Our survival statutes have also been said by us to preserve to the legal representative the original cause of action, enlarging the elements of damage to include wrongful death. And, any right to damages for wrongful death accrues to the administrator of a decedent's estate, the surviving husband or wife having no standing to sue for same in an individual capacity. See Fitzgerald v. Hale, supra; Cardamon v. Iowa Lutheran Hospital, 256 Iowa 506, 520, 128 N.W.2d 226; Gardner v. Beck, 195 Iowa 62, 67, 189 N.W. 962; Speiser on Recovery for Wrongful Death, (1966), section 14:2, page 744; 25A C.J.S. Death § 58, page 757; and 22 Am.Jur.2d, Death, section 15, page 618.

The measure of damage for wrongful death in this jurisdiction has been held to be the present worth of the estate a decedent would reasonably be expected to save as the result of his efforts from time of death until the end of natural lifetime had he lived. To this may be added interest on reasonable funeral expense for such time as it was prematurely incurred. Brophy v. Iowa-Illinois Gas & Elec. Co., 254 Iowa 895, 897, 119 N.W.2d 865, and Mallinger v. Brussow, 252 Iowa 54, 57, 105 N.W.2d 626. See also Marean v. Petersen, Iowa, 144 N.W.2d 906, 914.

And, under the Iowa rule it is of no consequence, in cases involving wrongful death, that the beneficiaries are or are not members of the decedent's immediate family. This has in fact served to provoke some adverse comment. See Evans v. Holsinger, 242 Iowa 990, 993, 48 N.W.2d 250, 28 A.L.R.2d 1434; 48 Iowa L.Rev. 666; 39 Iowa L.Rev. 498, 15 Drake L.Rev. 110; and 5 Drake L.Rev. 98.

IV. The standing or status of what is now identified as section 123.95, Code, 1966, is not here challenged.

Rather, defendants contend decedent's estate representative is granted neither a right of action nor the right to pursue a cause of action under that legislative enactment.

The essence of this contention is that a cause of action foundationed upon a Dram Shop Act does not survive the death of an injured third party. We cannot agree.

Section 4.2, Code, 1962, 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 this rule we are committed.

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. See Zucker v. Vogt, 2 Cir., 329 F.2d 426, 428--430; Cookinham v. Sullivan, 23 Conn.Sup. 193, 179 A.2d 840, 841--842; Saur v. Tobin, 23 Conn.Sup. 145, 178 A.2d 158, 159; and Restatement, Torts, section 520.

It is primarily a remedial or compensatory law, imposing liability without regard to all the elements of injury actionable at common law. Bistline v. Ney Bros., 134 Iowa 172, 175--185, 111 N.W. 422, 13 L.R.A.,N.S., 1158. See also Cowman v. Hansen, 250 Iowa 358, 362, 92 N.W.2d 682; Zucker v. Vogt, supra; Dahl v. Northwestern National Bank of Minneapolis, 265 Minn. 216, 121 N.W.2d 321, 324, 94 A.L.R.2d 1134; Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290, 292; Wyatt v. Chosay, 330 Mich. 661, 48 N.W.2d 195, 199--200; Iszler v. Jorda, N.D., 80 N.W.2d 665, 667; Cookinham v. Sullivan, supra; 13 Drake L.Rev. 172; and 8 Syracuse L.Rev. 252. See also Harper and James, The Law of Torts, sections 12.4 and 14.1, and Prosser on Torts, Hornbook Series, section 61, page 466.

The State of New York has a civil damage statute not unlike the Dram Shop Act here involved, except it includes a built in survival of action right. See Bator v. Barry, 282 App.Div. 324, 122 N.Y.S.2d 604, 607, and 8 Syracuse L.Rev. 253.

In that respect it is apparent sections 611.20 and 611.22, must be considered with and in fact read into section 123.95. This leads us to conclude any injury or wrong...