Cox v. Hrasky

• Decision Date: 02 March 1943
• Docket Number: Gen. No. 4207.
• Citation: 47 N.E.2d 728,318 Ill.App. 287
• Parties: COX v. HRASKY ET AL.
• Court: United States Appellate Court of Illinois

318 Ill.App. 287

47 N.E.2d 728

COX

v.HRASKY ET AL.

Gen. No. 4207.

Appellate Court of Illinois, Fourth District.

March 2, 1943.

Appeal from City Court of East St. Louis; William F. Borders, Judge.

Action by Rosa Lee Cox against Louis Hrasky and others to recover damages to her means of support under the Dram Shop Act by reason of the killing of plaintiff's husband by a person who had become intoxicated in defendants' tavern. From a judgment for plaintiff, defendants appeal.

Affirmed. Beasley & Zulley, of East St. Louis, for appellants.

Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellee.

STONE, Justice.

Rosa Lee Cox, appellee, hereinafter referred to as plaintiff, brought this action against Louis Hrasky, Genofefa Hrasky, and Alvina Vlcek, appellants, hereinafter referred to as defendants, to recover damages to her means of support, under what is commonly known as the Dram Shop Act.

The suit arises out of the killing of Mose Cox, husband of plaintiff, by one E. C. Hill, which took place in a tavern located on the corner of Third and Winstanley Streets, in East St. Louis, Illinois, on the 30th of January, 1941. The building was owned by defendants Hrasky, and the tavern was being operated by their widowed daughter, Alvina Vlcek, the other defendant. The amended complaint charged that on the date aforesaid, the said E. C. Hill, as a result of then and there drinking alcoholic liquors in the tavern, became intoxicated, and while so intoxicated, and as a consequence of his intoxication shot and killed the husband of plaintiff; that the said assault, shooting and killing of the said Mose Cox was in consequence of the intoxication of the said E. C. Hill, whereby plaintiff was deprived of her means of support. Defendants in their answer denied the charges set forth in the amended complaint, and in addition thereto filed affirmative defenses, which alleged in substance that Mose Cox had made an assault upon the said Hill and that Hill killed him because he was in a state of fright, and not while under the influence of any intoxicating liquors to which plaintiff filed her reply denying generally such affirmative facts. The case was tried by jury and a verdict of $4,500 was returned and judgment entered on the verdict, from which judgment, defendants prosecute this appeal.

From the facts it appears that on the evening in question Mose Cox and another man went to the Hrasky tavern shortly after E. C. Hill and a party of people had arrived there. It appears that Hill was drinking whiskey on his way there. Mose Cox sat with one group at a table and E. C. Hill with another group. At Hill's table whiskey and soda was ordered, and drunk by those there. Some of the witnesses testify to Hill drinking at this time. Hill started to get up from his chair, at the table and as he did so a gun dropped from his pocket to the floor, and as it did so, Mose Cox who was seated two tables away said in an ordinary tone of voice, in substance: “What did you drop there? You should be more careful or you will get in trouble.” With that Hill got up, picked up the gun, saying, “That's none of your business,” and started shooting. The first shot seems to have been fired into the floor, and other successive shots at Cox. At the time he was shot, Cox had a bottle of beer in his hand; there is some testimony to the effect that he was advancing toward Hill, at that time, but no one testifies as to any threats made by him nor that he held his bottle in any threatening attitude.

Cox was shot several times and fell to the floor. He died there in the tavern. After the shooting Hill backed out of the door with the revolver in his hand, and ran down the alley. He was later apprehended by the police, late that night, in St. Louis.

The statute under which this suit was brought provides in part as follows: “Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person”. Section 14, paragraph 135 of the Dram Shop Act, Ill.Rev.Stat.1939, c. 43, par. 135; Jones Ill.Stats.Ann. 68.042. It is contended by defendants that plaintiff cannot recover damages in this case because the complained of intoxication of Hill was as matter of law not the proximate cause. By the above statute a cause of action is given to anyone who may be injured in his person or property, or means of support, by any intoxicated person jointly or severally against such person or persons who have caused the intoxication, in whole or in part, of the person who commits the injury. An action is also given to anyone who may in the same manner be injured “in consequence” of the intoxication of any one, whether habitual or otherwise, against the parties who may cause such intoxication. In the one case it is for the direct injury inflicted by “any intoxicated person” and in the other it is for such damages as may arise “in consequence” of such intoxication. Where an action is brought for an injury inflicted by the affirmative act of an intoxicated person, and is therefore based upon the clause “by any intoxicated person”, the courts have held that it is not necessary that the intoxication be the proximate cause of the injury. King v. Haley, 86 Ill. 106, 29 Am.Rep. 14;Whitside v. O'Connors, 162 Ill.App. 108;Haw v. 1933 Grill, Inc., 297 Ill.App. 37, 17 N.E.2d 70;Martin v. Blackburn, 312 Ill.App. 549, 38 N.E.2d 939. For the purpose of applying this rule, the injury is regarded as having been inflicted by an intoxicated person, not only where the plaintiff himself was injured by the act of an intoxicated person, or such person killed the plaintiff's means of support, that is, her husband, but also where the loss of support resulted from the suicide during intoxication of plaintiff's husband or father. 15 R.C.L. Par. 206 pages 435, 436. Such was the case in Jack v. Prosperity Globe, 147 Ill.App. 176, where plaintiff's father had committed suicide, as a result of intoxication and the court there said: “The question of ‘proximate cause,’ in a technical sense, in the sense in which counsel argue it, is not involved in this case. A correct statement of that proposition would be: ‘That such intoxication caused his death.’ The statute provides that one who shall be injured in means of support, in consequence of the intoxication of any person, shall have the right of action provided therein. It is not necessary to a right of recovery in this class of cases, under the statute, that the intoxication should be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is ‘no matter whether the jury would consider it a proximate or remote cause.’ Kennedy v. Whittaker, 81 Ill.App. 605, 608;Munz v. People, 90 Ill.App. 647, 653.”

In the case at bar, whether the death of the husband of plaintiff at the hands of Hill was caused by Hill's intoxication was a question of fact for the jury, as was the question of whether the intoxication was the result of the serving of liquor by defendants. Martin v. Blackburn, supra, Jack v. Prosperity Globe, supra.

It is earnestly contended on behalf of defendants, that E. C. Hill was not intoxicated at the time he fired the shots that resulted in the death of Mose Cox, and that in that regard the verdict of the jury was contrary to the manifest weight of the evidence. Larmon Cole, testifying on behalf of plaintiff testified that when Hill came into the tavern he was walking funny. “He was walking reeling and rocking” and that when he came to the table, he stumbled over the foot of witness. That he was drinking and talking a lot of crazy talk. Witness smelled liquor on his breath. That Hill got up once before the shooting, that is, tried to get up, and sat back down. He testified categorically that Hill was drunk. Walter Collins, called as a witness for defendant, testified that Hill had a half pint of liquor with him in the car, on the way to the tavern and was drinking at that time. He further...