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Martin v. Wanda's9/13/2000
bar. Instead, the issue is whether there is evidence in the record tending to prove the corporation sold alcohol from its inventory to Chambers. Thus, we reject the Martins' suggestion evidence of consideration paid by the corporation for the alcohol is sufficient to generate a fact question here.
The Martins cite State v. Fountain, 183 Iowa 1159, 168 N.W. 285 (1918) for the proposition a fact question is generated on the issue of whether an employer sells liquor to his employees when the beverage is made available to them without charge as an inducement to perform labor. In Fountain, the defendant in a prohibition era case denied he had committed the crime of selling liquor, and testified he made the spirits available to his employees without charge because " t is hard to get a fellow to work in the scavenger business unless you give them a little drink. . . ." Fountain, 183 Iowa at 1160, 168 N.W. at 286. The Summerhays court did not find Fountain persuasive on the issue before it. Summerhays, 509 N.W.2d at 751. Nor do we find it persuasive on the question before us. The record is without support for any claim Chambers's salary was reduced by the cost of the alcohol she consumed. Similarly, there is no evidence in the record from which it could be inferred Chambers would not have worked at the bar on the day in question had the drinks not been provided. Although the Martins aptly observe Wanda's profit was likely diminished by Chambers's consumption of the beverages, this fact does not tend to prove Chambers gave consideration for them. Indeed, the effect of Chambers's consumption on the corporation's profit (or loss) is the same if the liquor was given to her as a gratuity.
Our decision in this case is consistent with our supreme court's interpretation of Iowa Code section 123.92. The legislature's choice of the words "sold and served" in the 1986 amendment of the statute reflects an intent to narrow the conduct for which a dramshop may be held liable. Summerhays, 509 N.W.2d at 751 (citing Paul v. Ron Moore Oil Co., 487 N.W.2d 337, 338 (Iowa 1992)). "Reading the term 'sold' to include a licensee's purely gratuitous undertakings would contradict [the legislature's] intent as well as the plain meaning of the statutory term." Summerhays, 509 N.W.2d at 751. The facts in this record do not generate a fact question on the issue of whether Wanda's sold the beverages in question to Chambers.
IV. Remaining Issues.
Having determined Wanda's did not sell the liquor to Chambers, it is unnecessary for us to reach the appellants' other assignments of error in this case.
AFFIRMED.
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