Burnley v. Moore

• Citation: 190 N.E.2d 141,41 Ill.App.2d 156
• Decision Date: 29 April 1963
• Docket Number: Gen. No. 48561
• Court: United States Appellate Court of Illinois
• Parties: Sammie BURNLEY, Plaintiff-Appellant, v. Mary Alice MOORE and Glover Moore d/b/a Glover's Caribbean Lounge, and Leoza Walton d/b/a 154 Cocktail Lounge, Defendants-Appellees.

Page 141

190 N.E.2d 141

41 Ill.App.2d 156

Sammie BURNLEY, Plaintiff-Appellant, v. Mary Alice MOORE and Glover Moore d/b/a Glover's Caribbean

Lounge, and Leoza Walton d/b/a 154 Cocktail

Lounge, Defendants-Appellees.

Gen. No. 48561.

Appellate Court of Illinois, First District, First Division.

April 29, 1963.

Neal & Neal, Chicago, for plaintiff-appellant.

Heineke, Conklin & Schrader, Chicago, for defendants-appellees Mary Alice Moore and Glover Moore.

Brody & Gore, Chicago, Paul H. Heineke, Andrew H. Marsch, Robert L. Brody, Chicago, of counsel, for defendant-appellee Leoza Walton.

ENGLISH, Justice.

Plaintiff's statement of claim was for a cause of action arising under the Dram Shop Act ¹ for injuries sustained at the hands of an intoxicated person to whom defendant tavern operators had served liquor. Defendants denied liability, and moved for summary judgment. In support of this motion, defendants, submitted the discovery deposition of plaintiff, her answers to written interrogatories, and her answers to a request for admission of facts, all of which were verified. Plaintiff filed her own counter-affidavit. Defendants' motion was allowed, and judgment was entered in their favor. Plaintiff has appealed.

Two propositions of law (one advanced by each side) are conceded by all parties, and are so well established as to require no citation of authorities. They are: (1) summary judgment should not be entered if the documents on file show that there is a genuine issue as to a material fact; and (2) the Dram Shop Act provides a remedy only for an 'innocent suitor' and does not create a cause of action for one who is an active and willing agent in procuring the intoxication of the assailant. Our task, therefore, is to determine from the record whether either or both of these propositions is appropriately applied to the facts of this case.

The occurrence in question took place on October 26, 1957, and the most complete recitation of facts in regard thereto is found in plaintiff's discovery deposition which was taken on June 18, 1958. From her testimony it appears that plaintiff was a barmaid in the Caribbean Lounge, a tavern operated by defendants Moore. She was the only employee working there that day between the hours of 1:00 P.M. and 9:00 P.M. One Samuel Chappell came in about 3:00 P.M. and was 'in and out' the rest of the time plaintiff was on duty. She observed him drinking with friends in the tavern. Chappell did not pay plaintiff for any of the drinks which she served to the group throughout the day, but she saw that he had a glass and was drinking with the others. No one but plaintiff was serving drinks in the tavern, and she served 'about four' half-pints of brandy together with set-ups, to the party in which Chappell was a participant. Although plaintiff did not serve drinks directly to Chappell, he was drinking liquor which she served to his group. ² Plaintiff was replaced by another barmaid at 9:00 P.M., who thereafter was seen by plaintiff to serve at least two more drinks to Chappell. During that time plaintiff sat in the tavern with a friend, and she, herself, had 'a couple' of drinks. As plaintiff was leaving the tavern at about 10:30 P.M., Chappell stabbed her without provocation.

After having testified as above set forth, plaintiff was again asked at her deposition whether the liquor which she had seen Chappell drinking was brandy which plaintiff had served. She replied that she didn't know where he got it, but that she had served some customers some brandy. Then followed this question and answer:

'Q. But it had to be liquor that you sold, is that correct?

'A. Quite natural. There was nobody working but me.'

The next document, chronologically, in support of defendants' motion was plaintiff's amended answer to interrogatories filed November 12, 1958. There she stated under oath that she had observed Chappell 'drinking for a period of about seven hours off and on'; that he 'was drinking beer and liquor, and from her observation he was intoxicated'; and that he consumed the liquor between 1:00 P.M. and 10:00 P.M. on defendants' premises.

Subsequently, on December 19, 1958, plaintiff filed verified answers to defendants' request for admissions in which she admitted that she was the only person selling liquor at defendant Moores' tavern between the...