Jon B. AANENSON, Plaintiff and Appellant, v. James E. BASTIEN, and Terry Kopp Bastien, d/b/a The Lower 48, Defendants and Appellees.
Civ. No. 880313.
Supreme Court of North Dakota.
March 21, 1989.
438 N.W.2d 151
Jeffries, Olson & Flom, Moorhead, Minn., for defendants and appellees; argued by Erik J. Askegaard.
ERICKSTAD, Chief Justice.
Jon B. Aanenson commenced a dram shop action against James E. Bastien and Terry Kopp Bastien, d/b/a The Lower 48, to recover damages for injuries he sustained in a motorcycle accident that occurred on October 26, 1985. Aanenson alleged that The Lower 48 served alcoholic beverages to Brian Wolfgram when he was already obviously intoxicated and that after Wolfgram left The Lower 48, he drove his motorcycle east on Cass County 14 and collided with the motorcycle operated by Aanenson which was stopped at or near the intersection of Highway 81.
This action was venued in the District Court for Cass County, East Central Judicial District, North Dakota, and was duly assigned to a district court judge. Upon defendant‘s motion for summary judgment, the court entered an order dismissing plaintiff‘s action and a judgment was entered accordingly. The court reasoned that “complicity” was a defense to a dram shop action in North Dakota. As Aanenson had purchased drinks for Wolfgram, he actively participated in Wolfgram‘s intoxication and was, therefore, a non-innocent party and precluded, as a matter of law, from recovery under North Dakota‘s Dram Shop Act. Aanenson has appealed from the judgment dismissing his complaint. We reverse and remand.
The issues on appeal are asserted to be:
Whether or not “complicity” is a defense to Aanenson‘s dram shop action; and - Whether or not Aanenson‘s conduct in purchasing rounds for the intoxicated person constituted complicity so as to bar recovery under the Dram Shop Act.
Neither party disputes the facts pertinent to this appeal. Early in the afternoon on October 26, 1985, Aanenson and Wolfgram met at Rick‘s Bar in Fargo, North Dakota. They remained together until the accident occurred at approximately 7:30 p.m. It was apparently a pleasant fall day and the two decided to drive around on their motorcycles. Along the way, they stopped at four additional bars, namely: Kirby‘s Bar and Ralph‘s Corner, both in Moorhead, Minnesota, the Knickerbocker Liquor Locker in Hickson, North Dakota, and The Lower 48 near Wild Rice, North Dakota. At Rick‘s, Kirby‘s, and Ralph‘s, Aanenson and Wolfgram, together with a mutual friend, Randy Winroth, took turns paying for the drinks they ordered. At the bar in Hickson and at The Lower 48, Aanenson and Wolfgram continued that practice.
Aanenson and Wolfgram left The Lower 48 at approximately the same time, with Aanenson driving his motorcycle in the lead. Wolfgram was having a bit of trouble with his motorcycle and Aanenson pulled ahead. Aanenson stopped at the stop sign at the intersection of County Road 14 and Highway 81. Wolfgram collided with him from behind.
As a result of his injuries, Aanenson brought a dram shop action against The Lower 48. The parties stipulated that The Lower 48 could commence “a Third-Party impleader action pursuant to Rule 14” of the North Dakota Rules of Civil Procedure, against the Knickerbocker Liquor Locker and Ralph‘s Corner.
At the time of the accident which occurred on October 26, 1985, North Dakota‘s dram shop statute was codified in
“Recovery of damages resulting from intoxication. Every spouse, child, parent, guardian, employer, or other person who is injured by any intoxicated person, or in consequence of intoxication, has a claim for relief against any person who caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained, and in the event death ensues, the survivors of the decedent are entitled to damages defined in section 32-21-02.”1
The “contrary to statute” requirement is fulfilled by violation of
“Delivery to certain persons unlawful. Any person delivering alcoholic beverages to a person under twenty-one years of age, an habitual drunkard, an incompetent, or an intoxicated person is guilty of a class A misdemeanor, subject to the provisions of section 5-01-08, 5-01-08.1 and 5-01-08.2.”
The question of whether or not complicity constitutes a defense to a dram shop action is one of first impression in North Dakota. In states that apply the rule of complicity, it has been held that: “[O]ne who actively contributes to or procures the intoxication of the inebriate is precluded from recovery.” Nelson v. Araiza, 69 Ill. 2d 534, 14 Ill. Dec. 441, 445, 372 N.E.2d 637, 641 (1977).
“If a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the Legislative intent is presumed clear from the face of the statute.” Milbank, supra, 373 N.W.2d at 891;
“The statute authorizes an award of damages not only for certain injuries by an intoxicated person but also for injuries in consequence of the intoxication of any person.”
When the wording of the statute is clear and free of all ambiguity, we have said that it is improper for the courts to attempt to construe the provisions so as to legislate additional requirements or proscriptions which the words of the provisions do not themselves provide. Haggard v. Meier, 368 N.W.2d 539 (N.D. 1985);
A statute must be construed to fulfill the objective and intent of the legislature. Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D. 1986). “We believe the Legislature intended to fix liability on the maker of an illegal sale where such sale causes the intoxication of the person doing the damage.” Fladeland v. Mayer, 102 N.W.2d 121, 123 (N.D. 1960). In Iszler v. Jorda, supra, 80 N.W.2d at 667-668, we said:
“The liability created by the Civil Damage Act has no relation to any common law liability, or to any theory of tort. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law. The act is remedial in character and should be construed to suppress the mischief and advance the remedy. It clearly gives a cause of action to every person who is injured in person, property or means of support as the result of the intoxication of any person when the intoxication was caused by the use of alcoholic beverages sold or given away in violation of law.” [Cites omitted.]
While this is the first time this Court has been asked to consider whether or not complicity is a defense to a dram shop action, we have previously determined that comparative negligence provides no defense to such claim. In Feuerherm v. Ertelt, 286 N.W.2d 509, 511 (N.D. 1979), we said:
“This statute is sui generis. It creates an entirely new cause of action unrelated to and different from any other. Iszler v. Jorda, supra. By enacting this statute it was the intention of our Legislature to create liability in a class of cases where no liability existed under common law. This liability is imposed not upon finding fault in the sense of any wrongful intent or negligent conduct on the part of the defendant, but upon finding a violation of Section 5-01-09, N.D.C.C., which prohibits the sale of alcoholic beverages to an intoxicated person, among others. Because liability was imposed upon the Nu-Bar for violating Section 5-01-09, N.D.C.C., without regard to wrongful intent or negligent conduct on its part, there can be no defense based upon the alleged negligent conduct of the
plaintiff, Ernest Feuerherm. We therefore hold that the North Dakota Comparative Negligence Law, Section 9-10-07, N.D.C.C., does not apply to actions brought under the Dram Shop Act. By so holding we are in accord with other jurisdictions that have held that contributory negligence, comparative negligence, or assumption of risk are not defenses to a dram-shop action. Turk v. Long Branch Saloon, Inc., 280 Minn. 438, 159 N.W.2d 903 (1968); Overocker v. Retoff, 93 Ill. App. 2d 11, 234 N.E.2d 820 (1968); Genesee Merchants Bank & Trust Co. v. Bourrie, 375 Mich. 383, 134 N.W.2d 713 (1965).”
The negligent conduct alleged to have been committed by Feuerherm was that he and the intoxicated person were involved in an altercation at a bar, rendering Feuerherm permanently and totally disabled from working at his trade as a brick mason. Feuerherm, 286 N.W.2d at 510. The complicitous conduct alleged to have been committed by Aanenson in this case was that he, an adult, took turns buying drinks with his friend, an adult, who later drove his motorcycle so that it collided with the motorcycle Aanenson was driving.
In Feuerherm we held that the alleged conduct was not a defense and was thus not even to be considered. In the instant case, difficult as it is to distinguish the conduct of the parties, The Lower 48 contends Aanenson‘s conduct should be a complete bar to his recovery in this case, notwithstanding the same statute applies to both cases.
A conceivable distinction is that “[c]omplicity is not predicated on the plaintiff‘s contribution to his injury but only upon his contribution to the inebriate‘s intoxication.” Nelson v. Araiza, supra, 14 Ill. Dec. at 445, 372 N.E.2d at 641. We do not accept that distinction as a justification for, in effect, legislating that the conduct of the claimant is a defense to a dram shop action under some circumstances but not under others.
As is the case with the entire North Dakota Century Code, our Dram Shop Act is to be construed pursuant to
“Rule of construction of code. The rule of the common law that statutes in derogation thereof are to be construed strictly has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be construed liberally, with a view to effecting its objects and to promoting justice.”
In light of this statutory rule of construction, this Court has liberally construed
In Iszler v. Jorda, supra, 80 N.W.2d 665, the defendant dram shop illegally sold alcoholic beverages to a minor, resulting in his intoxication. While the minor was intoxicated, he lost control of his automobile and died as a result of the injuries he received in the crash. No mention was made as to whether or not the parents of the minor were involved in the purchase of the alcoholic beverages and they were allowed to recover damages under the Civil Damage Act.
In Wanna v. Miller, 136 N.W.2d 563 (N.D. 1965), the plaintiff was standing at the rear of his automobile, trying to jack up the left rear wheel so that the tire could be changed. He was struck by a vehicle driven by the intoxicated person, apparently a stranger, and suffered severe personal injuries and damage to his property. The plaintiff was allowed to recover money damages from the defendant tavern owner, having proved that the defendant was engaged in the business of selling alcoholic beverages, that he sold or delivered such beverages to an intoxicated person, and that the damages complained of resulted from the intoxication of the person who was sold, bartered, or given the alcoholic beverage.
In Hastings v. James River Aerie No. 2337-Fraternal Order of Eagles, 246 N.W.2d 747 (N.D. 1976), a wife brought an action under the Dram Shop Act against three licensed liquor dealers for their sale or gift of alcoholic beverages to her husband when he was intoxicated. She alleged that this caused him to be convicted of the crime of second degree murder in the shooting death of a third person, resulting in his commitment to the State Penitentiary. No mention was made as to the part the plaintiff played, if any, in the intoxication of her husband and she was allowed to recover damages for loss of consortium.3
In Feuerherm v. Ertelt, supra, 286 N.W.2d 509, Feuerherm was involved in an altercation with an intoxicated person at a bar, which resulted in injuries rendering Feuerherm permanently and totally disabled from working at his trade as a brick mason. Feuerherm and his wife brought dram shop actions against the two bars which had served the intoxicated person. No mention was made as to the part Feuerherm played in the intoxication of the third person, if any. The defendant dram shop argued that comparative negligence should apply to the action. This Court did not agree and allowed plaintiffs to recover.
In Meshefski v. Shirnan Corp., supra, 385 N.W.2d 474, the plaintiffs’ son, Paul Meshefski, went to defendants’ bar, as did Lorenzo Leal. While there, each man consumed an undetermined amount of beer. No mention was made as to whether or not the men were drinking together. Shortly after midnight, a fight broke out and Leal stabbed Meshefski in the heart, resulting in his death. The plaintiffs brought a dram shop action against the bar owners. There was testimony that Leal may have been intoxicated from the use of drugs and this Court held that:
“[A] vendor of alcoholic beverages may be held liable for damage caused by an intoxicated person who was sold alcoholic beverages at a time when he exhibited outward manifestations of intoxication regardless of the cause of the intoxication. To hold otherwise would neither ‘suppress the mischief’ sought to be suppressed by the Dram Shop Act, nor ‘advance the remedy’ provided.” Id. at 478.
In Ross v. Scott, 386 N.W.2d 18 (N.D. 1986), the minor decedent‘s illegitimate son born after the minor‘s death, and the minor‘s father, brought an action for damages arising out of the death of the minor, Douglas Kanta, against several defendants, including the Williston Lodge No. 239, Loyal Order of Moose. Kanta had been drinking beer at the Moose Lodge the night he was killed. After leaving the Moose Lodge, Kanta was in a fatal collision with a semi-trailer. Disavowing any inference to the contrary that may be drawn from Jore v. Saturday Night Club, Inc., 227 N.W.2d 889 (N.D. 1975), this Court said that “[f]or liability under the Dram Shop Act to attach to an illegal sale of alcoholic beverages to a minor who becomes intoxicated, the minor need not have been intoxicated at the time of the sale.” Id. at 22.
Bastien asks that we now limit recovery under the Dram Shop Act to “innocent” claimants, as do the jurisdictions that recognize the complicity doctrine. He urges that we apply the rule of ejusdem generis when interpreting
In Savelkoul v. Board of County Com‘rs., Ward County, 96 N.W.2d 394, 398 (N.D. 1959), we approved application of the rule of ejusdem generis. We said that “[u]nder the principle of ejusdem generis, general words following particular and specific words are not given their natural and ordinary sense, standing alone, but are confined to persons and things of the same kind or genus as those enumerated. [Cites omitted.]” However, the rule is one of construction and is not applied automatically. See Christman v. Emineth, 212 N.W.2d 543, 549 (N.D. 1973), where we refused to apply the rule of ”ejusdem generis” to exclude coal from the term “other minerals” without a clear manifestation of the intent of the draftsmen. When there is no inconsistency between the specific factors and those based on the general statutory language, ejusdem generis does not apply. Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084 (6th Cir. 1981); 2A Sutherland Stat. Const. § 47.17, p. 166 (4th Ed. 1984).
The rule of ejusdem generis has been described as a manifestation of the bias towards strict construction of statutes in derogation of the common law. 2A Sutherland Stat. Const. § 47.18 p. 178 (4th Ed. 1984); 3 Sutherland Stat. Const. § 6202 p. 167 (3rd Ed. 1943); People v. Powell, 280 Mich. 699, 274 N.W. 372 (1937) (applying ejusdem generis to strictly construe statute in derogation of common law). This narrowing concept runs contrary to the rule of construction provided by our legislature that statutes are to be liberally construed to effectuate their objectives and promote justice.
When construing statutes, the rule of ejusdem generis may be used to carry out the intent of the legislature, but not to defeat or subvert that intent. See Culotta v. Raimondi, 251 Md. 384, 247 A.2d 519 (1968) (ejusdem generis was never intended to be employed to frustrate the purpose of a statute); Smilack v. Bowers, 167 Ohio St. 216, 147 N.E.2d 499 (1958) (ejusdem generis should not be followed to arrive at an intent different from that of the legislature); 82 C.J.S. Statutes § 332 at 664 (1953). Furthermore, when we interpret a statute, we presume that the legislature intended a just and reasonable result. See
We think it would be an absurd result if alcoholic beverage dealers could avoid liability for illegal sales to intoxicated customers depending upon whether the customers paid for their own drinks or took turns paying for each others drinks. Relieving the merchant of liability under the latter circumstance would not deter sales to intoxicated persons which is the objective of
Furthermore, we find our reasoning in Feuerherm to be applicable to the issue of complicity as well as to comparative negligence. We said that “liability is imposed not upon finding fault in the sense of any wrongful intent or negligent conduct on the part of the defendant, but upon finding a violation of Section 5-01-09, N.D.C.C., which prohibits the sale of alcoholic beverages to an intoxicated person, among others.” Feuerherm v. Ertelt, 286 N.W.2d at 511. As between the liquor merchant and a drinking companion, we believe the legislature intended the responsibility and liability for serving alcoholic beverages to an intoxicated person to fall on the merchant (the dram shop).
In Feuerherm, we noted that several other jurisdictions have held that comparative negligence is not a defense to a dram shop action. Those jurisdictions cited do, however, allow the defense of complicity, generally reasoning that it was not the purpose of the statutes to permit recovery by one who is himself a wrong doer, and that, accordingly, such a wrongdoer does not fall within the class of those to whom the statute gives a cause of action. See Nelson v. Araiza, supra, 372 N.E.2d 637; Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985); Malone v. Lambrecht, 305 Mich. 58, 8 N.W.2d 910 (1943); and Turk v. Long Branch Saloon, Inc., 280 Minn. 438, 159 N.W.2d 903 (1968); Annot. 26 A.L.R.3d 1112 (1969).
Recognizing that these jurisdictions have, at times, had an influence on the development of caselaw in North Dakota, we will discuss the reasoning apparently underlying their sanction of the complicity doctrine. Several factors are pertinent to our discussion. The wording of the individual dram shop statutes, the construction courts have put upon those statutes, and the evolution of civil liability for illegal sales of alcoholic beverages all appear to contribute to their recognition of complicity as a defense to a dram shop action. For the reasons stated hereafter, the decisions of those jurisdictions do not convince us of the rightness of applying the complicity doctrine as a complete bar in this case.
The dram shop statutes in Iowa,4 Michigan,5 and Minnesota,6 and to a certain extent, Illinois,7 are somewhat similar to that of North Dakota. However, these courts are guided by their own rules of statutory construction. Additionally, all four jurisdictions have historically interpreted their dram shop statutes as limiting recovery to “innocent” third persons, even though none of the statutes make mention of such limitation.8 See Reget v. Bell, 77 Ill. 593 (1875); Engleken v. Hilger, 43 Iowa 563 (1876); Rosecrants v. Shoemaker, 60 Mich. 8, 26 N.W. 794 (1886); and Sworski v. Colman, 204 Minn. 474, 283 N.W. 778 (1939), overruled on other grounds by Strobel v. Chicago, Rock Island and Pacific R.R. Co., 255 Minn. 201, 96 N.W.2d 195, 200 (1959).
Iowa has stated that its dram shop statute should be liberally construed,9 but
Minnesota has determined that civil damage acts, “although penal in nature, are also remedial in character and, according to the prevailing view, are to be liberally construed so as to suppress the mischief and advance the remedy.” [Emphasis theirs.] Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953).13 How-
Illinois asserts that its dram shop statute “is to be liberally construed to protect the health, safety, and welfare of the people from the dangers of traffic in liquor.” Nelson v. Araiza, supra, 14 Ill. Dec. at 442, 372 N.E.2d at 638. However, Illinois has recognized the complicity doctrine for well over one hundred years. See Reget v. Bell, 77 Ill. 593 (1875) (wife who did not take a jug of liquor away from her husband and thereby save his life was precluded from recovering under the Act). The Illinois courts’ construction of their dram shop statute is not persuasive of the interpretation of the North Dakota Dram Shop Act as the statutes are distinguishable and the evolution of the case law has been of a different emphasis: (1) Illinois does not require that the transfer of alcoholic beverages be illegal;16 and (2) Illinois seems to make the cause requirement more stringent in recent cases.17
“The objective of the Legislature in enacting the dramshop act was to discourage bars from selling intoxicating liquors to visibly intoxicated persons and minors and to provide for recovery under certain circumstances by those injured as a result of the sale of intoxicating liquor. Browder v. International Fidelity Ins. Co., 413 Mich. 603, 611-612, 321 N.W.2d 668 (1982). To permit one who has been an intentional accessory to the illegality to shift the loss resulting from it to the tavern owner would lead to a result we believe the Legislature did not intend. A person who buys drinks for an obviously intoxicated person, or one whom he knows to be a minor, is at least as much the cause of the resulting or continued intoxication as the bartender who served the consumer illegally. In short, barring recovery by a wrongdoer by holding that the wrongdoer is not among those to whom the Legislature intended to provide a remedy advances both purposes of the act, to suppress illegal sales and to provide a remedy for those injured as a result of the illegality.” Id. 381 N.W.2d at 776.
Although the writer of this opinion cannot speak from great personal experience, it is believed that it is the accepted practice of those who find sociability in taverns, bars, nightclubs, and restaurants that serve alcoholic beverages, to take turns purchasing those drinks. That being the likely and customary practice it would seem to defeat the objective of the Dram Shop Act, which is to prevent sales to intoxicated persons and the attendant disastrous consequences of such sales, if sales under such accepted customary practices were exempt from the provisions of the Act. Presumably, the dram shop merchant is refraining from imbibing alcohol while engaging in the business of selling and dispensing alcoholic beverages and thus is in a much better position to know when the imbibers have become intoxicated than the imbibers themselves.18
For the reasons stated in this opinion, the summary judgment dismissing Aanenson‘s complaint is reversed and the case is remanded for further proceedings with costs on appeal to Aanenson.19
MESCHKE, J., concurs in the result.
VANDE WALLE, J., concurs in result and files an opinion.
VANDE WALLE, Justice, concurring in result.
Because this is an appeal from a summary judgment I concur in the result reached in the majority opinion. Under the circumstances of this case I agree with much of the rationale contained in the majority opinion. However, I would leave for another day the issue of whether or not complicity can ever constitute a defense to a dram-shop action in North Dakota. Under different circumstances we might be hard pressed to hold, as a matter of law, that complicity can never constitute a defense. Indeed, public policy might dictate a different result under different circumstances.