Butler v. Wittland

• Decision Date: 25 September 1958
• Docket Number: Gen. No. 10171
• Citation: 153 N.E.2d 106,18 Ill.App.2d 578
• Parties: Jesse BUTLER and Zelma Butler, Plaintiffs-Appellants, v. George WITTLAND and M. E. Wittland, doing business as Georgie Porgie's Tavern, Helen Cross, doing business as The Jug Tavern, and Paul Merritt and Russell Bergman, doing business as The Spot Tavern, Defendants-Appellees
• Court: United States Appellate Court of Illinois

Page 106

153 N.E.2d 106

18 Ill.App.2d 578

Jesse BUTLER and Zelma Butler, Plaintiffs-Appellants, v. George WITTLAND and M. E. Wittland, doing business as Georgie Porgie's Tavern, Helen Cross, doing business as The Jug Tavern, and Paul Merritt and Russell Bergman, doing business as The Spot Tavern, Defendants-Appellees

Gen. No. 10171.

Appellate Court of Illinois, Third District.

Sept. 25, 1958.

Inghram & Dittmeyer, Quincy, Andrew C. Schnack, Jr., Quincy, for appellants.

Moran, Klockau, McCarthy & Johnson, Rock Island, Alvin J. Ufkes, Quincy, Frank G. Schubert, Rock Island, of counsel, for Helen Cross, Paul Merritt & Russell Bergman.

Schmiedeskamp, Jenkins & Robertson, Quincy, for George Wittland & M. E. Wittland.

CARROLL, Justice.

This is an action under the Dram Shop Act against the operators of three taverns located in the City of Quincy, Illinois.

The substantive allegations of the complaint are that the defendants in their respective taverns sold or gave intoxicating liquors to one Lowell Munns which caused his intoxication; that while thus intoxicated and as the result thereof he drove his automobile upon a certain highway in the State of Missouri in such a manner as to bring said automobile into collision with an automobile owned and operated by plaintiff Jesse Butler; that as the result of said collision, the latter suffered serious personal injuries and that by reason thereof plaintiff Zelma Butler, wife of Jesse Butler, was injured in her means of support. Damages in the amount of $15,000 are sought by each plaintiff.

The defendants moved for dismissal of the complaint on the grounds that it appears from the allegations thereof that the accident in which plaintiff sustained injuries occurred in the State of Missouri and therefore the Illinois Dram Shop Act under which the suit was brought is not applicable. The trial court sustained these motions, entered judgment for defendants, and plaintiffs have appealed.

The sole question presented is whether under the provisions of the Dram Shop Act an action may be maintained where the intoxication of a person occurs in Illinois and the injuries resulting therefrom are sustained outside this State. The question thus stated appears to have been passed upon in Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512, 513, 22 A.L.R.2d 1123, in which leave to appeal to the Supreme Court was denied. In that case the plaintiff alleged that defendant sold or gave intoxicating liquor to a person in Chicago, Illinois, which caused the intoxication of the latter and subsequently resulted in an accident in Hammond, Indiana, and the injury of plaintiff who was then a passenger in the automobile being driven by the alleged intoxicant. The defendant filed a motion to dismiss the complaint on the ground that the Illinois Dram Shop Act by virtue of which the claimed liability was asserted is without extraterritorial effect. Defendant's motion was sustained and plaintiff appealed from the judgment order dismissing the complaint. The Appellate Court, First District, affirmed the judgment of the trial court saying in part 'Intoxication alone does not give rise to a cause of action under the statute, but must be coupled with an act which causes injury. Baker & Reddick v. Summers, 201 Ill. 52, 66 N.E. 302. Plaintiff suffered no injury or damage in Illinois by virtue of the intoxication of Slaughter. The tortious act causing the injury was the operation by Slaughter of his automobile into the side of a truck in the State of Indiana, even though it be admitted that such act would not have occurred except for the intoxication. * * * The Illinois statute itself is silent upon its extraterritorial effect, and we are of the opinion it should not be given extraterritorial effect, unless it clearly appears that such was the intention of the legislature. * * * We think the argument persuasive, that if the legislature had intended the Dram Shop Act to have extraterritorial effect it would have so provided.'

Plaintiffs insist that this appeal should not be determined upon the authority of the decision on the Beachcomber case. Asserted in the alternative, their theory is that the opinion of the Appellate Court in that case ignored the construction of the Illinois Liquor Control Act which was placed upon it by the legislature or that the factual situation with which the court there dealt is distinguishable from that presented by the instant appeal.

Plaintiffs attempt to find support for the first of these propositions in Sec. 1 of the Act which reads as follows:

'Construction of Act. § 1. This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.' Sec. 94, Chap. 43, Illinois Revised Statutes 1955.

It is argued that in requiring the Act to be liberally construed to the end that the purpose of its enactment be served, the scope of its civil liability provision is rendered broad enough to give it extraterritorial force or effect. Such contention overlooks the fact indicated by the plain language thereof that the Liquor Control Act which includes the Dram Shop Act is essentially regulatory in its character. As said in Lichter v. Scher, 11 Ill.App.2d 441, 138 N.E.2d 66, 71, 'it is designed to discipline a legal but illfavored trade.' The source of the authority to enact legislation to control and regulate the traffic in intoxicating liquors is the police power of the state. Gibbons v. Cannaven, 393 Ill. 376, 66 N.E.2d 370, 169 A.L.R. 1190; Wall v. Allen, 244 Ill. 456, 91 N.E. 678. In the exercise of such power, the state has seen fit to incorporate in the Liquor Control Act a provision imposing civil liability upon Dram Shop keepers. This provision which is referred to as the Dram Shop Act, while remedial to the extent that it provides for recovery of damages for injuries resulting from the tortious acts of intoxicated persons, must nevertheless be regarded as serving only to advance the general regulatory purposes of the whole Act. These purposes as evidenced by its language are the protection of the health, safety and welfare of the People of Illinois and the promotion of temperance by control and regulation of the manufacture, sale and distribution of alcoholic liquor within the state. The Dram Shop Act as a part of the law governing the sale of liquor in Illinois is therefore essentially disciplinary and regulatory in its character. Robertson v. White, 11 Ill.App.2d 177, 136 N.E.2d 550, However, because the remedy therein provided is made available without regard to fault or negligence of the Dram Shop keeper, the Act is also penal in character and therefore should be strictly construed. In speaking of its dual nature, the court in Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 712, 6 A.L.R.2d 790, had this to say:

'It was not an actionable tort at common law either to sell or give intoxicating liquor to 'a strong and ablebodied man,' and such an act was not deemed to be culpable negligence...