Colligan v. Cousar

• Decision Date: 09 January 1963
• Docket Number: Gen. No. 48582
• Citation: 187 N.E.2d 292,38 Ill.App.2d 392
• Parties: Terry COLLIGAN, a minor, by Edward Colligan, his father and next friend, Appellant, v. Hency C. COUSAR et al., Defendants, Beatrice Schlegman, Elsie Reed, Chicago's Last Department Store, Inc., a corporation, Frank Schaffer, Ben Simon, Morris Simon and Leo W. Kiosek, Appellees.
• Court: United States Appellate Court of Illinois

Page 292

187 N.E.2d 292

38 Ill.App.2d 392

Terry COLLIGAN, a minor, by Edward Colligan, his father and next friend, Appellant, v. Hency C. COUSAR et al., Defendants Beatrice Schlegman, Elsie Reed, Chicago's Last Department Store, Inc., a corporation, Frank Schaffer, Ben Simon, Morris Simon and Leo W. Kiosek, Appellees.

Gen. No. 48582.

Appellate Court of Illinois, First District, Third Division.

Jan. 9, 1963.

Thompson, Lewin & Rafferty, Chicago, Percival E. Thompson, Chicago, of counsel, for appellant.

Morris, Liss, Arnold & Hennessy, Heineke, Conklin & Schrader, McKinley & Price, Robert L. Brody and George J. Gore, Chicago

(Paul H. Heineke, Roger A. Merletti, Chicago, of counsel), for appellees.

McCORMICK, Justice.

This appeal is taken from a judgment on the pleadings entered in the Circuit Court of Cook County in favor of the defendants and against the plaintiff. Suit was brought on behalf of Terry Colligan, a minor, for personal injuries sustained by him when he was struck by an automobile driven by an allegedly intoxicated person. The trial court entered judgment on the theory that the plaintiff had failed to state a cause of action in his complaint.

The plaintiff's amended complaint is in two counts. The cause of action alleged in count one is based on the Illinois Dram Shop Act (Ill.Rev.Stat., chap. 43, par. 135). It is alleged that the various defendants operated taverns on the far south side of Chicago at designated addresses. It is further alleged that on February 19, 1955 Henry C. Cousar and Virgil Young were sold or given liquors in these taverns and thereby became intoxicated, and as a result of such intoxication one of them, either Cousar or Young, while in a hopelessly intoxicated condition drove an automobile directly from one of the taverns across the Illinois state line and approximately 250 feet into the State of Indiana, where the said automobile hit 13-year old Terry Colligan, seriously injuring him. Damages for the injuries are prayed.

Count two is a count in common law based on the same occurrence. In that count, besides the allegations contained in count one, it is further alleged that various defendants sold or gave to Cousar and Young intoxicating beverages on their premises, and continued thereafter to sell or give to Cousar and Young intoxicating beverages after the said parties had become intoxicated, and that 'said latter sales or gifts were made carelessly and negligently or wilfully and wantonly, contrary to and in violation of a certain statute of the State of Illinois then and there in full force and effect, known as Section 131 of Chapter 43, Illinois Revised Statutes, 1955, which provided and provides in part as follows:

'No licensee nor any officer, associate, member, representative, agent or employee of such licensee shall sell, give or deliver alcoholic liquor to any * * * intoxicated person * * *.'

In another paragraph of the count there is the following allegation:

'That as to the latter sales or gifts set forth in the preceding paragraph, the plaintiff alleges that such sales or gifts were not only made contrary to and in violation of the law but were made either with an intention or a reckless disregard of the consequences of such sales or gifts.'

It is also alleged that Terry Colligan was not guilty of contributory negligence, and that, 'as a direct and proximate result of being in a hopelessly and helplessly intoxicated condition as a consequence of having consumed alcoholic beverages after they were already drunk,' Cousar and Young, or one of them, drove an automobile and thereby caused the injuries to Terry Colligan, and damages are prayed.

The defendants filed answers to both counts and joined in a motion for judgment on the pleadings, based upon the contention, as to count one, that under the Dram Shop Act the plaintiff cannot bring an action against the defendants since the plaintiff was injured in Indiana, and as to count two, that 'neither the common law nor Section 131 afford plaintiff a cause of action against these defendants because Section 135, Chapter 43, Illinois Revised Statutes provides the only remedy against tavern operators for injuries to person by an intoxicated person.' In support of the motion defendants cite Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153, and Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157.

The court on June 15, 1961 sustained defendants' motion for judgment on the pleadings and ordered that the action the dismissed and that the defendants and each of them go hence without day. From that judgment the plaintiff has taken this appeal.

In support of the judgment of the court holding that count one of the complaint does not state a cause of action, Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512, 22 A.L.R.2d 1123, is controlling. In that case the defendant sold or gave intoxicating liquors to one Slaughter in Chicago, Illinois, causing him to become intoxicated and causing injury to a passenger in his car when it collided with a truck in Indiana. The complaint was dismissed in the trial court. In the opinion the court states that the sole issue is whether or not the Dram Shop Act of the State of Illinois gives rise to a cause of action where the intoxication occurs in Illinois and the resulting accident occurs in another State. The court considers the case as one of first impression in Illinois. It discusses cases decided in other jurisdictions and reaches the conclusion that the statute should not be given extraterritorial effect. Petition for leave to appeal was filed and was denied by the Supreme Court. Under those facts the decision in the Eldridge case is stare decisis and is binding on this court. The same result was reached in Butler v. Wittland, 18 Ill.App.2d 578, 153 N.E.2d 106, the court in that case citing and relying on the Eldridge case.

The result reached in the Eldridge case has been severely criticized. Baylor Law Review, vol. XII, p. 388, discusses the rules laid down in various jurisdictions with reference to this matter. In 1958 Ill.Law Forum, No. 2, p. 287, attention is called to Schmidt v. Driscoll Hotel Inc., 249 Minn. 376, 82 N.W.2d 365, in which the court reaches a result contrary to that reached in the Eldridge case, and holds that the Minnesota Dram Shop Act may be given extraterritorial application. In Coffey v. ABC Liquor Stores, 13 Ill.App.2d 510, 142 N.E.2d 705, the court held that the tavern keeper was not entitled to indemnity in a third party action against the intoxicated person who did the injurious act for which the tavern keeper was allegedly liable. It was held that indemnity, contribution or subrogation is limited to an innocent party and that the tavern keeper was not innocent but was a joint tortfeasor, citing Buckworth v. Crawford, 24 Ill.App. 603, as having held that the sale of intoxicants which contributed to or caused intoxication was tortious, and the court further said: 'By the Dramshop Act the Legislature has expressed the public policy of our State. In our opinion the allowance of the claim for indemnification sought herein would violate the policy so expressed.' The article in the Law Forum also states: 'Traditional rules of statutory construction, as well as the conflicts rules of tort law, are for the most part in harmony with the Eldridge case. Whether the Illinois courts will break away from the result of that case will depend on whether they are more interested in a uniform statutory coverage and a furtherance of the policy which motivated the Dram Shop Act than they are in strict conformity to rules which were not made to fit the peculiarities of the Dram Shop Act.'

In Zucker v. Vogt, D.C., 200 F.Supp. 340, the court held that the administrator of the estate of a New York motorist, who had died following a collision of his automobile in New York with that of an intoxicated driver who had been served liquor in Connecticut, could maintain a diversity action in the federal court against the owner of the Connecticut restaurant at which the liquor was served, based on violation of a Connecticut Dram Shop Act. It refers to the rule laid down by the New York courts that those courts would not give extraterritorial effect to the New York Dram Shop Act, citing Goodwin v. Young, 34 Hun. 252. That case was cited and approved in the Eldridge case. In the Zucker case the court bases its decision upon the statement made by the Connecticut court in Pierce v. Albanese, 144 Conn. 241, 129 A.2d 606: 'Because of the danger to the public health and welfare inherent in the liquor traffic, the police power to regulate and control it runs broad and deep * * *. The multitude of automobiles on the public highways enhance the danger. * * * The obvious purpose of the legislation is to aid the enforcement of § 4293 * * * and to protect the public.' It also cites Osborn v. Borchetta, 20 Conn.Sup. 163, 129 A.2d 238, in which the court held, in an action against a New York liquor dealer for a sale of liquor in New York which resulted in injuries in Connecticut, that a cause of action based on the New York Dram Shop Act would be sustainable in a Connecticut court. In reliance on those decisions the court in the Zucker case held that the highest courts of Connecticut would hold that the plaintiff could recover damages for injuries sustained as a result of a violation by the defendant of the provisions of the Connecticut Dram Shop Act, even though the collision resulting in the injuries had occurred in New York.

In Nudd v. Matsoukas, 6 Ill.App.2d 504, 128 N.E.2d 609, we had before us a case in which two issues were presented: (1) Can the administrator of an estate maintain a suit for tort under the Wrongful Death Act when one of the surviving next of kin is made a principal party defendant? (2) Can a minor sue his father for wilful and wanton minsconduct? In that case we held that we were governed by the previous cases in Illinois. We pointed out that in...