*1 and that it with invalid releases is incon- did not sustain her burden proving that legislature ceivable intended invalid re- the release is invalid. I therefore concur parent, be valid. if a leases should Hence in reversal of the judgment.
acting promptness, proves with reasonable
by preponderance that a evidence McCORMICK, J., joins special con- understanding^ release was or volun- not currence. tarily given, the release should be set aside. The evidence should be scrutinized careful- however,
ly, attempt as an invalidate may
release a change result from of mind parent invalidity
of a rather than
release, his and the child and custodians
also have interests to be considered. prob- But 238 does deal with the COCHRAN, Donald D. Administrator of the Shirley Cochran, deceased, Larry revocability estate of lem of of releases which arc Cochran, surviving spouse and as father challenged. legislature themselves and next friend of Shae Allen Cochran too, subject silent on that could have been Hayword Cochran, Appellees, and Lee in which event court would have to say subsequently whether valid releases are and, so, grounds. if Ralph revocable on what al., Appellant. C. LOVELACEet itself, however, The legislature chose No. 55354. problem, provided deal with the that a Supreme Court of Iowa. child has been released can be re- upon prоof neglected. covered that he is July 3, 1973.
Section 238.29states:
Children so surrendered not be parents except
recovered through upon proof
decree of court based neglected by par-
the child is its foster
ent, custodian, guardian, neglect relating
defined the statute to ne-
glected children.
In this section the balanced all interests of the individuals involved. original
When surrender the child parents unchallenged,
itself can by “proof
recover the child that the child neglected.” I think we are bound
this statute as written. us,
II. In the case before Debra Statler
claims that the release itself was invalid inception
from its because she was mistak- en as give did not it un- import —she
derstandingly. promptly, and She acted proved preponder-
she has her claim a
ance of the set evidence should the re- Upon carefully
lease scrutinizing aside. however, evidence, f conclude that she *2 Hyland,
Thomas Moines, P. Des for Rаlph (defendant Edward and Jackson appealing). RAWLINGS, Justice.
Plaintiffs instituted dram shop action 1966, chapter under The Code Liquor Control Act) defendants, li- quor suppliers surety and on their bond. From trial court overruling order defend- surety’s ant motion to dismiss as to it this appeal permissibly taken. We reverse. To the plaintiffs, extent here relevant petition, six their division seek redress from defendants as licensees and permittees Also (licensees). party made a defendant is Merchants Bonding Mutual Company (Merchants), on the statu- tory posted by said licensees. Merchants, Defendant in its motion to dismiss, appears certainty asserts to a plaintiff has failed to state a claim on granted which any any relief proved which could he statement facts support brought pursuant of his actiоn provisions 1966, chapter of The 123as amended. plaintiffs
In resistance to said motion instantly contend Code an 613.1 affords avenue of relief under materia rule. inceptionally
I. It must be conceded this law, recognized action not common statutory authority foundationed on Klemesrud, N. alone. See Williams 1972); W.2d Wendelin Russell, Gerry Rinden, Klockau, McCarthy, M. citations; Am.Jur.2d, Rinden, Schubert, Lousberg, Ellison & In- Intoxicаting Liquors, Ill., Golden, Island, Roy A. Rock toxicating Liquors 430-432. Wasker, Sullivan, Golden, §§ Wheatcraft & Ward, Moines, Ralph Lovelace Des for C. plaintiffs’ II. The accident and not (defendants and Sharon K. Davis predicated case occurred June Mutual appealing) for Merchants plain- invoked Thus Code Co., Bonding appellant. tiffs, provides: applicable and § wife, child, Skinner, Altoona, husband, parent, Skinner, “Every
Ed
Irish &
guardian,
person
or other
employer
who
appellees.
application,
is resorted to
property or
universal
but
or
intent;
per-
legislative
by any intoxicated
search
support
means of
rule
cannot be invoked where
resulting from the intoxication
or
son
language
is clear and unam-
right
have a
of a statute
person, shall
any such
biguous.”
action,
jointly
severally or
shall sell or
permittee
censee
*3
also General Electric Co. v. Southern
See
to
intoxicating liquor
give any beer or
Co.,
135,
(5th
138
383 F.2d
Construction
intoxicated,
person
he
any such
while
955,
1967),
Cir.
cert. den.
U.S.
88 S.Ct.
390
point
person
a
any such
to
or serve
1049, 19 L.Ed.2d
Rabon v. South
all
intoxicated for
such
where
Dept.,
Highway
Carolina
258 S.C.
State
actually
(Emphasis
damages
sustained.
154,
652,
2
(1972);
654
Suther-
187 S.E.2d
supplied).
land,
Construction,
at
Stаtutory
5201,n. 1
§
ed., Horack,
(3d
1943);
Am.Jur.,
529
50
“Every liquor control
licensee
Statutes,
at
responsibility
348 345.
proof of financial
furnish
in-
liability
by
either
the existence of
Assembly,
If the
in en
General
in
posting
policy
surance
acting
had meant
that actions
as determined
the com-
such amount
brought against
such
this be
licensees or
as
mission.”
easily
permittees
their
it
could
Act,
provided.
have so
it did not do. See
it re
This
We are satisfied
as
Enterprises,
Roberts-Walby
Hartman
the instant
v.
parties
lates to
whom
724,
Incorporated,
clear,
Mich.App.
170
complete
17
N.W.
brought
action can be
sois
292,
2d
ambiguity
preclude
(1969).
as
293-294
and free from
to
any judicial
Iowa R.
construction. See
It is
intended
evident
Hocker,
344(f)
201
(13);
Civ.P.
State
brought
such
is here
us be
action
as
before
N.W.2d
v. Zim
(Iowa 1972); McKillip
74
per-
only against
offending
licensee or
merman,
706,
(Iowa
191 N.W.2d
709
says
mittee. The Act
what means
it
1971); State Ex Rel. Turner Koscot In
says.
what it
v. Kle
means
See Williams
terplanetary,
Inc.,
624,
191 N.W.2d
631
mesrud,
197N.W.2d
616.
(Iowa
Davenport
1971);
Water Co.
Com’n,
Iowa State Commerce
Furthermore,
190 N.W.2d
plaintiffs neither contend
(Iowa 1971);
594-595
Estate
plausibly urge that Mer-
they
nor could
Beeck,
Brauch v.
134
permittee under
chants is a licensee or
Valeu,
1970); State v.
Code
867,869-870, 134
N.W.2d
(1965).
heavily
plaintiffs lean
III. Sinсe
Michaelson,
111, 219
Curtis v.
Iowa
aforesaid, however,
As
plaintiffs
support
posi-
of their
(1928),
N.W.
in
urge
123.95must be construed with other
tion,
appropriate
to here distin-
find
materia,
pari
statutes in
citing
By
613.1.
guish that case.
argument plaintiffs
merely seek to in
specific
voke a
statutory
rule of
construc
initially brought
in tort
Curtis
which,
tion
above,
as
inapplica
denoted
damages
Michaelson
occasioned
for
clear,
ble when the
complete
statute is
a result of
struck
defendant
ambiguity.
free from
operated public
Michaelson
motor bus.
had, however,
disposing
left the state after
concisely
As
in
stated
Statutes
property
process
his
so that service
366b,at 813:
jurisdic-
could not be had
him this
general
“The
rule that the
to
meaning
petition
tion. The
then amended
was
statute
be determined
join
from its
insurer under
Michaelson’s
construction in
5105-a26,
pro-
connection with other The Code
statutes
vided,
materia
not one of
“insurance bond shall bind
Dist. of
compensation Lone Tree Com. School
&
obligors
to make
thereunder
Johnson
**
*
Louisa,
resulting
injuries
persons
N.W.2d
light
foregoing,
Knott v. Pe
operation of
motor carrier.”
In
from the
such
terson,
ground
followed. The motion filed to dismiss defendant peculiar that under these circumstances the Bonding Company Merchants Mutual party plaintiff directly could sue been should have sustained. the tort feasor’s carrier. insurance Reversed. persuasive find Curtis neither We nor *4 controlling on the issue now before In us. place, the first Curtis dealt with The Code MOORE, MASON, J., C. Le- 1927, 5105-a26, imple a statute which REES, JJ., GRAND and concur.
mented the Distinguishably, common law. bar, in the case at as aforesaid deal REYNOLDSON, HAR- UHLENHOPP, with a creating statute cause of action McCORMICK, dissent. JJ., RIS Furthermore, unknown common law. to the in holding Curtis was limited to an ab REYNOLDSON, (dissenting). Justice situation, sconding instantly tort feasor not holding recog involved. That was later Majority Code, reasons The by legislative nized subse enactment1 and 1966, grants injured person the a cause of quently judicial accorded confirmation.2 action against permittee and, the licensee Finally on this Curtis with a dealt subject because such action is in derogation of general statute so invite ju in to terms law, common indeрendent there can be no construction, instantly precluded dicial for or co-extensive against cause of action reasons heretofore stated. censee’s concept bondsman. Such of strict construction of in alleged deroga- statutes aforesaid, plaintiffs’ As IV. tion of common law of course violates 4.-§ against statutorily is founda- Merchants 2, The fallacy But thе Code. in that ra- accordingly tioned and this court re- tionale is pinpointed by further query: the otherwise, stricted. Stated Merchants then injured where else the in code the a party made defendant the bare alle- party given statutory recourse the gation posted surety a bond bondsman? pursuant on behalf to of licensee Code chapter 123, the conditions that bond necessаry The implication majori- left by being express unknown. therefore We no ty’s opinion right is that the of action plaintiff sought view as to the result had statutory bondsman, the predicated upon redress Merchants from code, found in the be must fixed correspondent terms the bond and obli- terms of the bond. Assuming but not con- gations, any, part on the of Merchants ceding can thus control its own plaintiffs. to liability, majority necessarily hy- must pothesizing bond terms which are not be- foregoing Mindful we now V. of the fore us. hold, plaintiffs instantly could not be ac- party pleaded, I. Here the injured with- any sought
corded
relief
Mer-
terms,
jre
specifying
out
there
awas
bond.
chants.
In
104(b);
See Iowa R.Civ.P.
Forwarding
Forty-Third
1.
v.
of the
Great Lakes
Session
General
Schulte
(embodied
Corp.,
Assembly,
1012,
1§
ch.
in The
proved police power in support of the dеemed an exercise of the claims asserted state, Boegel, protection him. Rick of the for the N.W.2d 713 * * * safety peo- The bond in the instant welfare of the case, evidence, placed ple state, provisions all its when secured and may prove beyond par- liberally dispute construed for the ac- ** ty original right complishment purpose It has of action. of that might well contain the same as the terms legislative concern for welfare of Peterson, bond in Knott persons incurring through injury : N.W. expressed traffic was section, pay
“As the bond was conditioned to
1966. In this
which first
damages resulting
all
from
li- provided
right
injured persons
the sale of
quors by Peterson,
pay any
obviously
and not
damages,
*5
judgment
might be
thought
payment
which
rendered
those
insuring
was
of
him,
against
and his
and Peterson
damаges:
jointly
severally
were
and
liable thereun-
“Every liquor control
licensee
der,
necessity
making
there was
no
proof
responsibility
furnish
of financial
party,
judgment
Peterson a
nor for a
liability in-
either
the existence
aof
against
precedent
him a condition
to a
as
policy
posting
surance
or
bond in
right
fidelity
of action
the
such
the
amount
determined
com-
guarantee company. This is fundamen-
mission.”
Code,
tal doctrine.
§
[now §
The
1973].”
legisla-
the
apparent in
123.95
It is not
§
of
the interests
ture
concerned with
was
summarily
Knott is
ex-
overruled without
compa-
bonding
censees,
or insurance
planation by majority.
thoughtful
A few
addi-
mandates
majority’s result
nies. Yet
surely
appropriate
have been
words would
damaged
litigation for a
tional
demise
the
of what we once consid-
insolvent, and where
principal is
where the
a
ered “fundamental doctrine.”
in-
holding
(after
suit
he absconds before
bonding company
makes no issue
Michaelson,
Iowa
v.
applicable Curtis
concerning
provisions
the
unknown
of
recovery at
no
all.
49),
219 N.W.
petition.
bond identified in the
The lan-
guage of the
the sole
statute constituted
construing
123.95 we should
When
§
ground of its motion to dismiss:
purpose
and thе
consider the
to be served
sought
evil
to be remedied. State
Statute, by
terms,
“That said
does
Inc.,
Guardsmark,
there reject is no reason to the rationale of surety. and the Under (licensee) Curtis, requires 3, that rule R.C.P. simultaneous- that action clear applicable here, if we willing say are against both. ly and maintained brought (under language of that rule) the § 123.95 “bond or other instrument” in- was respect to automo- true with IV. It is tended for public the benefit of “the gener- in 1924 liability insurance this court bile ally, particular or of individuals” and not be sued in the insurer could not held the for the benefit of bonding licensees and Aplin v. with the insured. same action companies. Smith, 388, 197 N.W. 197 Iowa excep- significance
It is of no embalmed as an injured Aplin that the rule became party specifically is not general part named in of rule R.C.P. the bond. tion to the decision, suffering damage One at the articulated hands of an The rationale of bond, rule, other required give who is Iowa rea in the is found bond, son of breach may bring ac 318: N.W.
tion
regardless
on the bond
of who is
insurance is a contract
“The contract of
obligee
named
therein.
Feil
Scott v.
liability arising
indemnity,
schmidt,
Iowa
R.C.P., application in cir- have no these WALKER, Appellant, Robert J. logical cumstances. There is reason to principal surety cannot conclude the COUNTY, Iowa, JOHNSON and the Johnson both be sued in the same action in the case County Health, Appellees. Board of before us. No. 55814. I would affirm the trial court. Supreme Court Iowa. McCORMICK, join HARRIS and JJ„ July 3, this dissent.
UHLENHOPP, (dissenting). Justice Reynold- Judge I join
I division opinion. a dissenting The accrual of
son’s obligor
cause depends upon of the bond.
bond the terms Bonds 34 C.J.S. Am.Jur.2d
Bonds at 469. 123.95 the 104a Section ap- (§ Code)
1971 Code
pears enough com- broad to authorize the the ob- accept permitting
mission
ligor judg- either (a) to be sued after (b)
ment is or obtained licensee
merely the licensee liable. Insurance here, law, analogous
law is and under that directly may proceed person
“The obtaining a insurer before or after
judgment against insured where this
permitted by policy.” the terms of the 1191b, C. Insurance at 109. Cf. 45 (“Where Insurance 930 at 1051
J.S. provide particular does for a policy establishing liability,
mode of insurer specified happening
liable on the con-
tingency against, irrespective insured
whether not the insured seeks to insured.”).
enforce petition
A to a vulnerable motion *8 plaintiff
dismiss if the could not re- provable state un-
cover of facts petition. Boegel,
der his Rick v. N. present (Iowa). petition
W.2d permit enough proof
broad of a liability of,
conditioned distin-
guished judgment against, from the licen-
see. trial rightly court mo- overruled the The judgment
tion. be affirmed. should