Economy Auto Ins. Co. v. Brown, Gen. No. 10227.

• Decision Date: 04 June 1948
• Docket Number: Gen. No. 10227.
• Citation: 79 N.E.2d 854,334 Ill.App. 579
• Parties: ECONOMY AUTO INS. CO. v. BROWN et al.
• Court: United States Appellate Court of Illinois

334 Ill.App. 579

79 N.E.2d 854

ECONOMY AUTO INS. CO.

v.BROWN et al.

Gen. No. 10227.

Appellate Court of Illinois. Second District.

June 4, 1948.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action by Economy Auto Insurance Company against Joe Brown, doing business as Joe Brown's Tavern, and others, to recover under the Dram Shop Act sums paid by plaintiff in settlement of liability claims against its insured who injured divers persons while driving his automobile while intoxicated. Judgment of dismissal, and plaintiff appeals.

Affirmed.

Wyatt Jacobs, of Chicago, for appellant.

Charles E. Jack, of Waukegan, and James J. McKenna and Lord, Bissell & Kadyk, of Chicago, for appellee.

BRISTOW, Justice.

This is a proceeding for damages under the Dram Shop Act by plaintiff, Economy Auto Insurance Company, a corporation, to recover sums paid in settlement of liability claims against its insured, Thomas Roach, who injured divers persons while driving his car in an intoxicated condition caused by the consumption of alcoholic beverages purchased from defendants.

The circuit court of Lake County sustained defendants' motion to strike the complaint on the ground that it failed to state a cause of action, and dismissed the suit. From that judgment plaintiff has appealed to this court.

The sole issue presented in this cause is a question of law-whether the right of action conferred by the Dram Shop Act may be invoked by an insurance carrier on the theory that, in settling claims against its insured who committed certain wrongful acts while intoxicated, it sustained a property damage in consequence of intoxication under the terms of the statute.

It is readily conceded that the rights asserted by plaintiff are without precedent in this or any other jurisdiction. It is incumbent upon the court to determine from the terms and purport of the statute, and from the tenor and scope of the decisions interpreting it, whether plaintiff's cause of action can legitimately come within the purview of the Dram Shop Act.

Section 14 of the Dram Shop Act (ch. 43, par. 135, Ill.Rev.Stat.1947) provides:

“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 * * *.”

The courts have held that the objective of this provision is to encourage temperance in the consumption of alcoholic beverages by making those who furnish the means of intoxication liable for the damage caused thereby; and, as remedial legislation, this provision must be construed “to suppress the mischief and advance the remedy.” (Hyba v. C.A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564, 565;Klopp v. Benevolent Protective Order of Elks, 309 Ill.App. 145, 33 N.E.2d 161;Thompson v. Wogan, 309 Ill.App. 413, 33 N.E.2d 151.)

To effectuate this objective, the statute has been construed to confer two separate and distinct causes of action, unknown at common law, against persons who may have caused the intoxication. The first right of action is granted to persons sustaining injuries to person or property, or means of support, inflicted “by an intoxicated person,” and the second, applies to such injuries sustained “in consequence of intoxication.” (King v. Haley, 86 Ill. 106, 108,29 Am.Rep. 14.)

In the instant case plaintiff's alleged rights are asserted for injuries sustained in consequence of intoxication, inasmuch as its insured, Thomas Roach, inflicted direct injury only upon the persons and the car with which he collided, and in no way directly damaged plaintiff's property.

In accordance with recognized principles of statutory construction, the words “in consequence of” appearing in the Dram Shop Act have been given their accepted common law meaning in the absence of a statutory definition, (Meadowcroft v. Winnebago County, 181 Ill. 504, 54 N.E. 949,) hence, in asserting this cause of action, plaintiff must allege facts showing that its property loss was “proximately caused” by the intoxication of Roach. Whiteside v. O'Connors, 162 Ill.App. 108;Cope v. Gepford, 326 Ill.App. 171, 61 N.E.2d 394;Bejnarowicz v. Bakos, 332 Ill.App. 151, 74 N.E.2d 614;Cox v. Hrasky, 318 Ill.App. 287, 47 N.E.2d 728; 30 Am.Juris. 581.

Plaintiff contends, however, that the doctrine of proximate cause has no application to Dram Shop cases. The court in the Whiteside case, supra, unequivocally rejected that contention and stated:

“When the action is for any injury resulting from the direct, affirmative act of an intoxicated person, the doctrine of proximate cause has no application, and a liability accrues upon proof of that fact, but where the action is for an injury resulting ‘in consequence of intoxication habitual or otherwise,’ it is incumbent upon plaintiff to show that such intoxication was the proximate cause of the injury.”

Moreover, the court reconciled many of the cases cited by plaintiff with the general rule promulgated therein.

In Jack v. Prosperity Globe, 147 Ill.App. 176, relied upon by plaintiff, the court authorized recovery in a case where plaintiff sued for loss of support under the Dram Shop Act where her father drank carbolic acid while intoxicated, and stated that the question of proximate cause and forseeability was not involved. Inasmuch as the act of committing suicide was the direct affirmative act of the intoxicated person, the statement that the doctrine of proximate cause was not applicable is clearly consistent with the established weight of authority, and does not relieve plaintiff from establishing the element of proximate cause in the instant case.

Nor do the other cases cited by plaintiff sustain its contention. In Roth v. Eppy, 80 Ill. 283, the court condemned a tendered instruction because it required the jury to find that the selling of liquors was the proximate cause, whereas the requirement of the statute is that the intoxication be the proximate cause. In Nagle v. Keller, 237 Ill. 431, 86 N.E. 694, the only issue was whether plaintiff was a member of the class of persons entitled to recover for injury to “means of support” under the statute, and inasmuch as she was dependent upon her brother for support, and he was under a legal liability to support her, the court held that she was deprived of this support in consequence of his intoxication and therefore she had a proper cause of action.

In Schroder v. Crawford, 94 Ill. 357, 34 Am.Rep. 236;Poole v. Lansden, 183 Ill.App. 609, and Meyer v. Butterbrodt, 146 Ill. 131, 34 N.E. 152, the courts recognized the requirement of establishing proximate cause in cases under the Dram Shop Act where the injury is sustained in consequence of intoxication, and merely determined in each case whether the particular injuries were proximately caused by the intoxication.

This court, moreover, cannot sustain plaintiff's assertion that the question of whether intoxication is a proximate cause of the alleged injury is a question for the jury. For, where that issue is presented by a motion to strike the complaint, as in the instant case, or as under the old procedure by a demurrer to the declaration, it is a question of law. Schulte v. Schleeper, 210 Ill. 357, 71 N.E. 325;Hulinger v. Worrell, 83 Ill. 220.

It is, therefore, the province of this court in deciding whether the circuit court erred in dismissing plaintiff's complaint to determine whether plaintiff's alleged injury to property, by virtue of the payments made pursuant to its contract of insurance with Roach, was proximately caused by, or in consequence of, Roach's intoxication.

The Illinois cases are replete with formulations of the general rules for determining what constitutes a proximate cause (Whiteside v. O'Connors, supra, and cases cited therein; Seith v. Commonwealth Elec. Co., 241 Ill. 252, 89 N.E. 425, 24 L.R.A., N.S., 978, 132 Am.St.Rep. 204; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247.) And in each case the inquiry is whether the injury was the natural and probable consequence of the negligence, or, as in cases under the Dram Shop Act, of...