(dissenting).
I respectfully dissent from Divisions I, II and the result.
The majority has elected to decide the merits of plaintiffs’ contentions concerning trial court’s instructions even though it expresses misgivings about the adequacy of plaintiffs’ exceptions to two of them. It upholds the instructions. I think trial court erred in instructions 4, 5 and 7 and that reversible error was adequately preserved.
I. The instructions. The vice in all three instructions is the same. Trial court imposed a burden on plaintiffs to establish the drinks furnished Williams by defendants were a proximate cause of his intoxication at the time of the collision. I believe this inserted in the case what the majority suggests at one point is a “false issue.” Trial court imposed a requirement on plaintiffs not found in the dram shop statute. In doing so it effectively nullified the statute.
In instruction 4 trial court included this requirement in the elements of plaintiffs’ cause of action. In instruction 5 the court purported to explain the element. In instruction 7 it defined proximate cause in accordance with the usual uniform instruction definition.
The statute clearly does not impose an obligation upon one seeking recovery to prove the drinks served by the dram shop were a proximate cause of the intoxication which caused injury. Code § 123.92 permits recovery for injury “by any intoxicated person or resulting from the intoxication of any such person * * * 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 * * In order to recover a plaintiff must prove: (1) that the defendant was a licensee or permittee; (2) that he sold or gave beer or intoxicating liquor to a person while he *33was intoxicated or to the point where he became intoxicated; and (3) that plaintiff was injured by such person while he was intoxicated or as a result of his intoxication. See London & Lancashire Indemnity Co. of America v. Duryea, 143 Conn. 53, 57, 119 A.2d 325, 327 (1955); McNally v. Addis, 65 Misc.2d 204, 209, 317 N.Y.S.2d 157, 164-165 (1970); cf. Iowa Uniform Jury Instruction (Civil) 15.3.
Trial court and the majority have created a new element, not provided for in the statute, apparently because in this case there was evidence from which the jury could have found all defendants’ alcohol ingested by Williams was oxidized by the time of the accident. Thus, even though there was no direct evidence he drank any intoxicants after leaving defendants’ tavern, the jury could have concluded from the fact alcohol was in his system at the time of the accident he must have done so. There was also evidence from which the jury could find Williams’ condition at the time of the accident was influenced by fatigue and consumption of a diet pill.
Plaintiffs maintained they were still entitled to recover so long as their proof established Williams remained continuously intoxicated from the time defendants last served him liquor. This was reflected in their proposed instructions, and it is precisely this principle which is expressed in Mason v. Lovins, 24 Mich.App. 101, 114, 180 N.W.2d 73, 80 (1970):
“Accordingly, even if Lovins would not have remained intoxicated at the time of the accident but for the drinks he consumed after he left the tavern, the liability of the tavern continues as long as there was no break in the intoxication between the time preceding the illegal sale through the time of the accident.”
This principle is quoted but ignored by the majority in its attempt to distinguish Mason from the present case. The fact is Michigan adheres to the principle even though its statute, as observed by the majority, requires “a causal connection between the unlawful sale and the injuries for which the plaintiff seeks to recover.” Mason demonstrates that in Michigan the causation requirement is satisfied so long as the original intoxication is not interrupted by an interval of sobriety. This is far from a requirement of proximate causation as defined in instruction 7. Trial court’refused to give the proposed instructions and instead incorporated the opposite concept in plaintiffs’ burden of proof. In effect plaintiffs were required to show that defendants’ liquor was affecting Williams at the time of the accident and that but for such liquor he would not then have been intoxicated.
This error is revealed rather than cured by reading the instructions together. Instruction 7 includes the standard proximate cause definition. That definition is incorporated by reference in instructions 4 and 5. Nothing in instructions 4 and 5 could lead the jury to disregard it; the court tells the jury to apply it.
The majority suggests instruction 5 contains language which would permit the jury to find for plaintiffs even if it found plaintiffs did not prove Williams still had defendants’ alcohol in his system at the time of the accident. I disagree. But even if that was true, instruction 7 tells the jury the opposite when it requires the jury to absolve defendants unless plaintiffs proved Williams would not have been intoxicated at the time of the accident without their liquor. “Giving an incorrect instruction is not obviated by giving a correct one on the same issue since it is impossible to tell whether the jury followed the correct guide or the incorrect one.” Wheatley v. Heideman, 251 Iowa 695, 713, 102 N.W.2d 343, 354 (1960).
Trial court’s mistake was to inject the concept of proximate cause in a place it does not belong. A problem of evidence should not have become the basis for introducing a new element into plaintiffs’ burden of proof. The only question under the statute was whether Williams did in fact remain *34intoxicated, not whether defendants’ liquor caused him to remain that way. Plaintiffs’ only burden in this respect was to prove the furnishing of drinks and the accident occurred during the same episode of intoxication.
The position taken by the majority is also flatly contradicted by a principle it quotes with apparent approval from 45 Am.Jur.2d Intoxicating Liquors § 582 at 873:
“Under a dramshop act providing for a right of action against those persons who merely sell liquor to intoxicated persons, there need be no proof that the sale of liquor produced or contributed to the intoxication of the person to whom it was sold.”
Like Connecticut, Iowa has such a statute. Unlike the situation in Minnesota and Illinois it is not essential under our statute that the liquor cause the intoxication. The person may already be drunk. In fact, we have not yet been required to decide whether our present statute requires the drinks furnished by the dram shop must actually be consumed for there to be liability. Further, as noted by the majority, no issue is presented in this case as to whether a dram shop claimant must show the intoxication was a proximate cause of the injury for which recovery is sought. That remains an open question under our statute.
The Am.Jur. principle derives from Connecticut cases. See, e. g., Pierce v. Albanese, 144 Conn. 241, 129 A.2d 606 (1957). The Connecticut statute is indistinguishable in any material respect from our own. The principle is in keeping with the legislative policy that our dram shop statute is to be liberally construed to advance the remedy. Williams v. Klemesrud, 197 N.W.2d 614, 615 (Iowa 1972); Wendelin v. Russell, 259 Iowa 1152, 1158, 147 N.W.2d 188, 192 (1966), and citations.
The net effect of the majority’s opinion is to reduce the statute to a statement of the common law under which this court held no recovery is possible in Cowman v. Hansen, 250 Iowa 358, 368, 92 N.W.2d 682, 687 (1958):
“It is true, nothing good can be expected of an intoxicated person. But to go further and call any negligent act an intoxicated person may do, after leaving a tavern, the proximate cause or the probable cause of an injury resulting from the sale of the beverage, is, as almost all courts have said, too remote.”
As pointed out in Cowman, legislation in this field is intended to bridge the obstacles to recovery caused by common law notions of proximate causation. We observed in Williams, supra, 197 N.W.2d at 617:
“Dram shop statutes impose strict liability, without negligence, upon the seller, [citation] The ordinary concepts of proximate cause are not strictly applied.”
In its interpretation of Code § 123.92 in this case the majority has given the Iowa statute a more restrictive interpretation than has been given any comparable statute in any other state. See annot. 64 A.L.R.2d 705 et seq. This interpretation is an unwarranted frustration of plain legislative intent.
I believe trial court erred in instructions 4, 5 and 7 insofar as they imposed on plaintiffs the burden to prove Williams’ intoxication at the time of the accident was proximately caused by defendants’ liquor.
II. Preservation of error. The majority does not question the adequacy of plaintiffs’ exceptions to instruction 7. Since I believe that instruction is erroneous in its relation to instructions 4 and 5, the exceptions. to instruction 7 were sufficient to preserve reversible error even under the majority opinion.
Moreover, we have said objections to instructions must be considered in light of the record as made at the close of the evidence. The test is whether under this *35standard, the exceptions were sufficient to alert trial court to the issue later raised on appeal. Elkader Cooperative Company v. Matt, 204 N.W.2d 873, 877 (Iowa 1973).
Here much of the evidence concerned the oxidation rate of alcohol. The defense was based in part on showing Williams at the time of the accident did not have any of the same alcohol in his system which was there when he left defendants’ tayern. Plaintiffs alerted trial court to their theory by their proposed instructions, which I maintain were a correct statement of the law. Considering the exceptions taken to the instructions in this context I have no doubt trial court was alerted to the issue now raised on review.
I would reverse and remand for new trial.
REYNOLDSON, J., joins in this dissent.