Cruse v. Aden

• Citation: 20 N.E. 73,127 Ill. 231
• Parties: CRUSE v. ADEN.
• Decision Date: 26 January 1889
• Court: Supreme Court of Illinois

127 Ill. 231

20 N.E. 73

CRUSE

v.ADEN.

Supreme Court of Illinois.

January 26, 1889.

Appeal from appellate court, Fourth district.

W. S. Day, P. E. Hileman

, and D. W. Karraker, for appellant.

Monroe C. Crawford and H. F. Bussey, for appellee.

On the 4th day of November, 1884, George A. Cruse, husband of appellant, Julia Ann Cruse, was, while intoxicated, thrown from his horse, and received injuries from which he shortly afterwards died. Thereupon said Julia Ann Cruse, his widow, prosecuted this suit in the circuit court of Union county against Adde Aden, since deceased, and obtained against him judgment for $800 damages. The suit was brought to recover damages for injury to her means of support, and the declaration concluded: ‘And by force of the statute in such case made and provided an action has accrued to her against defendant for the recovery of her said damages in the premises, and therefore she brings her suit,’ etc. Upon the appeal of the said Adde Aden to the appellate court of the Fourth district, the judgment of the circuit court was reversed, and the final order and judgment of said appellate court found and recited the facts of the case to be as follows: ‘Julia Ann Cruse, appellee and plaintiff below, at the time of the commencement of her suit was the widow of George A. Cruse, who died intestate; that during his life he furnished means of support to said appellee, and died intestate, leaving a farm and other property of which he died seised and possessed; in his life-time he carried on his farm and was a strong and able-bodied man, capable of working as a farmer up to the time of his death; that by his death his widow was injured in her means of support; that the proximate cause of the accident which resulted in his death was intoxication, and that two drinks given him by appellant contributed to cause such intoxication; that said two drinks of intoxicating liquor were given to said husband of appellee by appellant as an act of mere courtesy and politeness, and not for any pay, profit, benefit, or advantage to appellant, or intended by appellant to gain for him any pay, profit, benefit, or advantage; and that appellant and said husband of appellee, at the time said two drinks were so given, were friends and acquaintances, and appellant was not then engaged, directly or indirectly, in the sale or traffic in intoxicating liquors.’ Upon application of said Julia Ann Cruse, appellee in the appellate court and appellant here, the appellate court certified that ‘the case involves questions of law of such importance on account of principal and collateral interests as that it should be passed upon by the supreme court,’ and granted to said Julia Ann Cruse an appeal to this court, which was duly perfected. Said appellate court further certified to this court the following grounds for granting said appeal, to-wit: ‘ First. That said supreme court may pass upon and decide whether or not, under section 9 of the dram-shop act of this state, a recovery can be had against a person other than a dram-shop keeper, or person who makes a business of dealing in intoxicating liquors; and whether, under said section 9, all persons, though not engaged in the liquor traffic, can be held liable for selling or giving intoxicating drinks to another, thereby in whole or in part causing intoxication and injury, etc. Second. Whether or not, upon the facts found by this court in its judgment of reversal, a recovery can be had under said section 9 by appellee against appellant.’Since the pendency of the appeal in the supreme court the death of said Adde Aden has been suggested, and Caroline Aden, his administratrix, has been substituted as appellee in his place and stead.

BAKER, J., ( after stating the facts as above.)

If we rightly apprehend one of the claims made by counsel for appellant in his argument presented to this court, it is this: that it is not the character of the transaction or of the individual that controls the right of action involved in this suit; that such right of action existed before the statute was enacted; that every person is answerable under the law for an injury done to another; and that section 9 of the dram-shop act simply saves all remedies, and even enlarges them, so that it cannot be claimed that dram-shop keepers are exempt from damage suits of the character here in question simply because they are operating under a license from public authority for which they have paid large sums into the public treasury. This position is not tenable. It was not a tort at common law to either sell or give intoxicating liquor to ‘a strong and able-bodied man,’ and it can be said safely that it is not anywhere laid down in the books that such act was even held at common law to be culpable negligence that would impose legal liability for damages upon the vendor or donor of such liquor. The present suit can in no sense be regarded as an action of tort at common law. Meidel v. Anthis, 71 Ill. 241.

The cause of action here is necessarily purely statutory, and the question whether it is a valid cause of action must depend upon the proper construction of section 9 of the dram-shop act. It is admitted by counsel for appellant that the various sections and provisions of the dram-shop law, except sections 6 and 9, are directed exclusively against dram-shop keepers and those engaged, lawfully or otherwise, in the liquor traffic; but it is insisted, in substance, that as the sixth section denounces a penalty against ‘whoever shall sell or give intoxicating liquor to any minor,’ ‘or to any person intoxicated, or who is in the habit of getting intoxicated;’ and that, as the ninth section provides in express terms that ‘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 intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons;’ and that, as these sections, respectively, use the words ‘sell or give,’ and the phrase ‘by selling or giving,’ there is no occasion for construing such language, it needing no construction; and that the plain intention of section 6 is to protect minors, intoxicated persons, and habitual drunkards from either sales or gifts of intoxicating liquors, not on the ground that the giver is a dram-shop keeper, but for the protection of the minor, intoxicated person, and drunkard, and family; and that section 9 is intended to provide a remedy for those who are injured in person, property, or means of support by the conduct of others, be they dram-shop keepers or other persons. Section 13, art. 4, of the constitution of 1870, provides: ‘No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.’ In the Revised Statutes of 1874 the title of the act under consideration is ‘Dram-Shops,’ and the title of the act in full is: ‘An act to provide for the licensing of and against the evils arising from the sale of intoxicating liquors.’ If the intent and scope of said sections 6 and 9 are as broad as the contention of appellant claims ...