Farmers State Bank and Trust Co. v. Lahey's Lounge, Inc.

• Decision Date: 03 February 1988
• Docket Number: No. 4-87-0467,4-87-0467
• Citation: 165 Ill.App.3d 473,519 N.E.2d 121
• Parties: , 116 Ill.Dec. 531 The FARMERS STATE BANK AND TRUST COMPANY, Administrator of the Estate of Kellie L. Wheatley, Deceased, and Orville Wheatley, individually and as representative, guardian and next friend of Christopher Wheatley, a minor, Plaintiffs-Appellants, v. LAHEY'S LOUNGE, INC., a corporation, d/b/a Lahey's Lounge, Leonard's and Leroy's Pub, Inc., a corporation, d/b/a Leroy's Pub, and Veterans of Foreign Wars Post 1379, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 121

519 N.E.2d 121

165 Ill.App.3d 473, 116 Ill.Dec. 531

The FARMERS STATE BANK AND TRUST COMPANY, Administrator of

the Estate of Kellie L. Wheatley, Deceased, and Orville

Wheatley, individually and as representative, guardian and next friend of Christopher Wheatley, a minor, Plaintiffs-Appellants, v. LAHEY'S LOUNGE, INC., a corporation, d/b/a Lahey's Lounge,

Leonard's and Leroy's Pub, Inc., a corporation,

d/b/a Leroy's Pub, and Veterans of

Foreign Wars Post 1379,

Defendants-Appellees.

No. 4-87-0467.

Appellate Court of Illinois,

Fourth District.

Feb. 3, 1988.

Edward J. Kionka, Murphysboro, John E. Norton, John E. Norton & Associates, Belleville, for plaintiffs-appellants.

Christopher J. Klockau, Thomas L. Kilbride, Klockau, McCarthy, Ellison & Marquis, P.C., Rock Island, for Lahey's Lounge.

John P. Lynaugh, John P. Lynaugh, Ltd., Springfield, for VFW Post 1379.

Daniel Simmons, Heyl, Royster, Voelker & Allen, Springfield, for Leonard's & Leroy's Pub.

Justice McCULLOUGH delivered the opinion of the court:

On June 28, 1985, the plaintiffs, Orville Wheatley and Christopher Wheatley, a minor, through his guardian, brought suit in the circuit court of Morgan County under the Dramshop Act (Ill.Rev.Stat.1985, ch. 43, par. 135). Plaintiffs sought recovery for injuries sustained as a result of the death of Kellie Wheatley, plaintiffs' wife and mother respectively. Plaintiffs sought recovery for injuries to person, property, and means of support. The three defendants, Lahey's Lounge, Leroy's Pub, and Veterans of Foreign Wars (VFW) Post 1379, moved for dismissal. The trial court dismissed those counts alleging: injury to means of support; injury to property for loss of future earnings and services; and injury to property for loss of society and consortium. Plaintiffs then moved for voluntary dismissal of the remaining counts. The court granted plaintiffs' motion and plaintiffs appeal therefrom.

Plaintiffs raise three issues on appeal, all concerning damages available under the Illinois Dramshop Act, specifically: (1) whether injuries to "means of support" include loss of a housewife's domestic services; (2) whether injuries to property include loss of a housewife's domestic services; and (3) whether injuries to property include the loss of society and consortium.

On July 4, 1984, Kellie L. Wheatley was struck and killed by a van driven by Edward Frietag. Wheatley suffered massive head injuries and was pronounced dead on arrival at Passavant Hospital. Police officers, who arrived on the scene to investigate, immediately detected a strong odor of alcohol on Frietag. Frietag was given a breathalyzer test, the results indicating a blood-alcohol level of .16. Frietag then submitted to a blood test which showed a blood-alcohol level of .18.

Frietag had been at three dramshops on the date of the incident. According to the depositions and affidavits filed with the court, Frietag, accompanied by his wife, arrived at VFW Post 1379 at approximately noon. They remained at the VFW post until 1 p.m. From this point, Frietag proceeded directly to Lahey's Lounge where he stayed until approximately 3 p.m. Frietag was next seen at Leroy's Pub, where he remained until 5 p.m. Although there was some discrepancy as to the exact amount of alcohol consumed, Frietag admitted drinking at each tavern.

Plaintiffs filed suit against the three dramshops which allegedly caused Frietag's intoxication. The complaint, which was amended several times, in its final form, alleged 15 counts, 5 against each defendant.

The five areas upon which plaintiffs sought recovery included: (1) a survival action for the conscious pain and suffering of the deceased prior to her death; (2) an action for property damage, specifically expenses incurred for the medical treatment, ambulance service, and the funeral of the deceased; (3) an action for injuries to "means of support" based upon the loss of the deceased's future earnings and services; (4) an action for property damages due to the loss of the deceased's future earnings and services; and (5) an action for property damages for the loss of the deceased's society and consortium.

The deceased, Kellie Wheatley, was not employed outside of the home and earned no income during 1984. In 1981 and 1982, she earned $674 and $357 respectively as a part-time seamstress. It was undisputed that her personal living expenses exceeded those amounts earned. Plaintiff Orville Wheatley's income tax returns for 1983 and 1984 did not reflect any income from his wife.

There was much evidence regarding the superior quality of the deceased's skills as a homemaker, wife, and mother. Plaintiffs presented evidence of the cost of child care and other expenses to replace the domestic services previously performed by the deceased. Future child care expenses were estimated in excess of $19,000. Plaintiffs' expert, Dr. Leroy Grossman, calculated the value of the loss of the deceased's past and future domestic services at $385,227.

Following motions by the defendants, the trial court dismissed those counts seeking recovery for injury to means of support, property damages for future earnings and services, and property damages for loss of society and consortium. The court, in granting defendants' motion, expressed its reliance upon Wilberton v. Freddie's Pepper Box, Inc. (1986), 148 Ill.App.3d 319, 102 Ill.Dec. 58, 499 N.E.2d 615. Plaintiffs elected to stand on the dismissed counts and moved to voluntarily dismiss the remaining counts. The court granted the plaintiff's motion.

INJURIES TO MEANS OF SUPPORT

It is uncontested that damages for injuries to "means of support" are available under the Illinois Dramshop Act (Act) (Ill.Rev.Stat.1985, ch. 43, par. 135) where an injured party was employed for cash. The plaintiffs, however, assert that "means of support" should also include domestic services provided by a housewife. Since the acts of cooking, cleaning, and child care are occupational in nature and are easily subject to monetary valuation, the plaintiffs claim they constitute "means of support."

Section 6-21 of the Act provides recovery for "injuries to means of support caused by an intoxicated person." (Ill.Rev.Stat.1985, ch. 43, par. 135.) Although the Act is remedial in this context, the Act is essentially penal in character providing recovery for injuries which result from the tortious conduct of intoxicated persons without regard to fault. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) Consequently, the Act must be strictly construed "to suppress the mischief and advance the remedy." (402 Ill. at 318, 83 N.E.2d at 712.) Since the recoverable injuries are specifically enumerated, recovery must be limited to those classes named or fairly encompassed within the terms. 402 Ill. at 318, 83 N.E.2d at 713.

Recovery for loss of support under the Act is justified under the theory that a person actually contributing to support prior to the time of his death would likely have continued such support had he lived. (Angeloff v. Raymond (1979), 70 Ill.App.3d 594, 27 Ill.Dec. 165, 388 N.E.2d 1128.) Thus, the law requires that support was in fact rendered, and recovery cannot be based upon the future potentiality of support not presently provable. (70 Ill.App.3d 594, 27 Ill.Dec. 165, 388 N.E.2d 1128; see also Penoyer v. Hare (1979), 76 Ill.App.3d 225, 31 Ill.Dec. 764, 394 N.E.2d 1082.) Support must be measured by such tangibles as loss of wages and inability to continue to earn a living. (Stevens v. B &amp The plaintiffs cite Weiner v. Trasatti (1974), 19 Ill.App.3d 240, 311 N.E.2d 313, for the proposition that domestic services rendered by a housewife are included in the concept of means of support. While the Weiner court alluded to the fact that domestic services were a means of support, numerous subsequent cases have held this to be dicta.

                [116 Ill.Dec. 534] L Package Liquors, Inc.  (1978), 66 Ill.App.3d 120, 22 Ill.Dec. 868, 383 N.E.2d 676.)   The determination of what constitutes "means of support" is a question of fact
                

In Weiner, a First District Appellate Court construed loss of means of support to include those services rendered by a wife in the performance of her household and domestic duties. The deceased wife in Weiner, however, was employed outside the home, and supported her husband in business endeavors, as well as provided domestic services to her family. In finding an injury to means of support, the court noted:

"Means of support include all those resources from which the necessities and comforts of living are or may be supplied. [Citation.] The capacity for providing means of support may be shown by proof of earnings and contribution of services or income. [Citations.] The services of a wife to which a husband is entitled include those rendered by the wife in performance of her household and domestic duties, as well as those rendered by her while assisting the husband in his business." Weiner, 19 Ill.App.3d at 246, 311 N.E.2d at 319.

Since the Weiner disposition, Illinois courts have continued to back away from the language characterizing domestic services as a means of support. These courts construe the Weiner language as dicta, having no precedential value. (See Wilberton, 148 Ill.App.3d 319, 102 Ill.Dec. 58, 499 N.E.2d 615; Maras v. Bertholdt (1984), 126 Ill.App.3d 876, 81 Ill.Dec. 728, 467 N.E.2d 599; Penoyer v. Hare (1979), 76 Ill.App.3d 225, 31 Ill.Dec. 764, 394 N.E.2d 1082; Martin v. American Legion Post No. 784 (1978), 66 Ill.App.3d 116, 22 Ill.Dec. 864, 383 N.E.2d 672; Stevens v. B & L Package Liquors, Inc. (1978), 66 Ill.App.3d 120, 22 Ill.Dec. 868, 383 N.E.2d 676.) Means of support, as defined post-Weiner, relates solely to a party's wage-earning potential and does not include maternal duties and domestic chores.

In Wilberton, the court was presented with a case factually analogous to the situation herein. The legal guardian of the children of the deceased mother sought recovery for...