(dissenting in part).
Being unable to agree with the reasoning or conclusion reached in Division II of the majority opinion regarding availability of the assumption of risk doctrine to defendant-Athletic Club, I therefore concur in part, dissent in part.
I. It is to me evident the majority here again unjustifiably extends assumption of risk when other courts are more realistically abandoning that concept. I am satisfied it should in any event be strictly limited to those cases in which plaintiff and defendant stand in a consensual relationship to each other, i. e., host-guest, master-servant, principal-agent cases, or where it exists by virtue of some legally acceptable express agreement.
See in support of the foregoing Owens v. Union Pac. R. Co., 319 U.S. 715, 720, 63 S.Ct. 1271, 1274, 87 L.Ed. 1683; dissent in Wright v. Peterson, 259 Iowa 1239, 1249, *630146 N.W.2d 617; and Prosser, Law of Torts, Third Ed., Single Volume, section 67, page 450, 455-461.
II. Furthermore I cannot agree with the majority’s finding to the effect there is nothing inconsistent with the purposes of our dram shop or civil damage acts, and attendant application of assumption of risk as a defense.
At the outset, defendant-Athletic Cluh’s liability, if any, is the result of statutory enactment, there being no counterpart in any common law doctrine. It was not a tort at common law either to sell or give alcoholic liquor to another. It thus follows, dram shop acts serve to create an entirely new statutory cause of action previously unknown to Anglo-American jurisprudence.
Unlike general law governing tort liability,. fault or wrongdoing on the part of the dram shop offender is not essential to liability. In other words, negligence is not a prerequisite to recovery, and liability is imposed upon persons other than the one directly causing an injury. Resultantly an injured third party can recover from the statute violating first party who has provided a second party with intoxicating beverages to the point of intoxication, even though the injured third party has had no direct dealings or association with the first party dispenser.
Actually, as evidenced by the provisions of both our dram shop acts, their purpose is to make those who excessively supply intoxicants to another, liable for any resulting damage.
Moreover, all dram shop acts in general, as demonstrated by Code section 123.1 are enacted as: “ * * * an exercise of the police power of the state, for the protection of the welfare, health, peace, morals and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose, and it is declared to be the public policy that the traffic in alcoholic liquors is so affected with a public interest that it should be regulated * * See also Crane v. Campbell, 245 U.S. 304, 307, 38 S.Ct. 98, 99, 62 L.Ed. 304; 48 C.J.S. Intoxicating Liquors § 33, page 164; and 30 Am.Jur., Intoxicating Liquors, section 21, page 263.
In summary then, we are concerned with legislation designed to promote public health, welfare, peace, morals and safety by creating a statutory right of action unknown to the common law. And an injured third party, in an action brought under such legislative enactments is permitted recovery without regard to the supplier’s fault or negligence.
With regard to the foregoing see Wendelin v. Russell, 259 Iowa 1152, 147 N.W.2d 188; Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952; Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 28 S.E.2d 329; Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 6 A.L.R.2d 790; Dillon v. Nathan, 10 Ill.App.2d 289, 135 N.E.2d 136; Sworski v. Colman, 204 Minn. 474, 283 N.W. 778; Iszler v. Jorda, (N.D.), 80 N.W.2d 665; Christoff v. Gradsky, Ohio Com.Pl., 140 N.E.2d 586; 13 Drake L.Rev. 172; 1958 Univ. of Ill.L.Forum 175; 1967 Univ. of Ill.L.Forum 116; 38 N.D.L.Rev. 103; 4 Vill.L.Rev. 575; 26 A.L.R.3d 1112; and 48 C.J.S. Intoxicating Liquors §§ 430-436, pages 716-720.
On the other hand the assumption of risk doctrine is a hybrid judicial invention. As Professor James stated in 61 Yale Law Journal 141: “(1) In its primary sense the plaintiff’s assumption of a risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk *631under the circumstances. This is a form of contributory negligence.”
When considering the availability of assumption of risk as a defense in a dram shop action, it must be remembered we are concerned with an injured third party who has ordinarily had' no association or dealings with defendant supplier.
With that in mind this statement in Harper and James, The Law of Torts, is both pertinent and persuasive. These authors at section 21.1, page 1165 state: “Not reasonableness of the risk but the voluntary character of the association is the gist of the defense. True assumption of risk ré-flects the individualism of the common law in relationships wherein it was felt that the duty of self-protection against many hazards rested primarily on each participant. It is a negation of duty by one to look out affirmatively for the other’s safety.
“It is clear then that the concept of assumption of risk in the primary sense is not to he considered in a situation where defendant has breached a duty towards plaintiff — where the latter has ‘a statutory right to protection, * * ” (Emphasis supplied.)
In addition these same authors state at section 21.3, page 1174, that: “The key is to be found in the character of the relationship between the parties and their respective duties in the light of it. The plaintiff takes a risk voluntarily (within the meaning of the present rule) where the defendant has a right to face him with the dilemma of ‘take it or leave it’ — in other words, where defendant is under no duty to make the conditions of their association any safer than they -appear to be. In such a case it does not matter that plaintiff is coerced to assume the risk by some force not emanating from defendant, such as poverty, dearth of living quarters, or a sense of moral responsibility. If, on the other hand, defendant is not privileged to put plaintiff to the choice of taking or leaving a danger, the mere posing of the dilemma takes away the voluntary character of any assumption there may be of the risk.” (Emphasis supplied.)
Upon the basis of the foregoing it is to me apparent, absence of voluntariness in the relationship between a damaged third party on one hand, and the first party supplier of intoxicants on the other, precludes any application of assumption of risk as a supplier defense.
Dealing as we are with a statutory cause of action and duty unknown to the common law, not predicated on a finding of negligence between an injured third party and the supplier of intoxicants, I would not so broaden or extend the assumption of risk doctrine as to make it available in an action brought under the statute here involved.
III. Pursuing this phase of the subject one more step, the majority states we have held the assumption of risk doctrine is applicable to actions under our guest statute, therefore it must now apply to dram shop actions. I agree a guest may assume the risk of recklessness or intoxication of a host driver. Bohnsack v. Driftmier, 243 Iowa 383, 392, 52 N.W.2d 79. Our guest statute, however, restricts right of recovery under the common law, whereas dram shop laws provide a basis for recovery foreign to that law. The two do not stand in the same shoes. See Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 713, 6 A.L.R.2d 790.
In the first place our guest statute serves in effect to preclude recovery by a guest for ordinary negligence of the host driver. Inferentially this means an automobile guest assumes the risk of ordinary negligence on the part of a host. As stated supra, this statute does nothing more than restrict a common law right of recovery as between consensual parties. See Horst v. Holtzen, 249 Iowa 958, 962, 90 N.W.2d 41, and Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27.
Dram shop acts, however, do not provide a defense to common law actions for negligence, serving only to create a new.statu*632tory basis upon which recovery may be had from suppliers of intoxicants for damages resulting from the furnishing of such beverages.
Stated otherwise, our guest statute precludes recovery from the host by reason of negligence alone. Conversely, our dram shop acts provide a statutory basis of recovery without regard to negligence. The two are not comparable and an erroneous analogy should not be decisive of the issue now before us.
IV. Furthermore, I again submit sections 123.95 and 129.2, Code of Iowa, 1966, commonly referred to as dram shop acts, were enacted for the socially beneficial purpose of deterring the sale or gift of intoxicants to any person to the point such individual becomes intoxicated. Some courts have even held legislation of this nature is penal in character. 1958 Univ. of Ill.L.Forum, page 175, 181, and 48 C.J.S. Intoxicating Liquors § 431, page 717. In any event, Code sections 123.95 and 129.2, must, as previously observed, stand as a legislative declaration of public policy for the protection of society.
I am accordingly persuaded assumption of risk as a defense to an action by an injured third party, caused by an intoxicated second party, which intoxication was induced by sale or gift of intoxicants by a statute violating first party, will serve, in effect, to unduly undermine and erode the very aim, objective and purpose of our dram shop acts.
If for no other reason, the majority holding on the issue at hand, is not to me acceptable in that it is contrary to public policy.
V. Finally I submit, our dram shop acts serve to impose upon all coming within their purview a restrictive statutory duty. And, since the duty so fastened by law upon defendant-Athletic Club constitutes an obligation to the public, it could not be waived by plaintiff. By the same token this defendant cannot be allowed to defend on the ground that plaintiff, being one of the class for whose protection the law was enacted, assumed the risk.
In support of these views see Narramore v. Cleveland, C., C. & St. L. R. Co., (6 Cir.), 96 F. 298, 300-305, 48 L.R.A. 68, cert. den. 175 U.S. 724, 20 S.Ct. 1021, 44 L.Ed. 337; Shahinian v. McCormick, 59 Cal.2d 554, 30 Cal.Rptr. 521, 381 P.2d 377, 383-385; Casey v. Atwater, 22 Conn.Super. 225, 167 A.2d 250; L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8, 10-12; Powless v. Milwaukee County, 6 Wis.2d 78, 94 N.W.2d 187, 188-191; 56 C.J.S. Master and Servant §§ 369-370, pages 1169-1172; and 65A C.J.S. Negligence § 174(7), page 303.
I join the majority in reversing, but would hold assumption of risk is not available as a defense to one standing in the position of defendant in any action brought for recovery of damages under and pursuant to either of our dram shop acts.
BECKER and LeGRAND, JJ., join in this dissent.