Graham v. General U.S. Grant Post No. 2665

• Decision Date: 24 July 1968
• Docket Number: Gen. No. 67--169
• Citation: 239 N.E.2d 856,97 Ill.App.2d 139
• Parties: Mabel M. GRAHAM, Plaintiff-Appellant, v. GENERAL U.S. GRANT POST NO. 2665, a VFW of the United States, a Corporation; Rossetta Young Allan, De Loss Allan and Ray Glick, d/b/a Silver Dollar Tap; andEdward J. Bussan, Mary Bussan and Anne Herman, d/b/a Gay Nineties, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 856

239 N.E.2d 856

97 Ill.App.2d 139

Mabel M. GRAHAM, Plaintiff-Appellant, v. GENERAL U.S. GRANT POST NO. 2665, a VFW of the United States, a Corporation; Rossetta Young Allan, De Loss Allan and Ray Glick, d/b/a Silver Dollar Tap; andEdward J. Bussan Mary Bussan and Anne Herman, d/b/a Gay Nineties, Defendants-Appellees.

Gen. No. 67--169.

Appellate Court of Illinois, Second District.

July 24, 1968.

As Modified on Denial of Rehearing Sept. 19, 1968.

Roszkowski & Paddock, Rockford, for petitioner-appellant.

Nack, Richardson, & Nack, Galena, for defendants-appellees.

DAVIS, Justice.

On the motion of the defendants--the owners and operators of three taverns located at Galena, Illinois--, the Circuit Court of the Fifteenth Judicial Circuit entered an order dismissing the plaintiff's amended complaint. The plaintiff appealed.

The pertinent facts as alleged in the amended complaint are: On May 1, 1966, the defendants were in the business of selling liquor at retail at Galena, and sold liquor to Jack Schleicher, which caused his intoxication in whole or in part. At nine o'clock that evening in Grant County, Wisconsin, near the Illinois-Wisconsin line, while intoxicated, and as a direct result thereof, Schleicher drove his automobile in such a manner to cause it to collide with the automobile driven by plaintiff, and thereby severely injured her.

Count I alleged a cause of action against the defendants under section 14 of Article VI of the Liquor Control Act, commonly know as the Dram Shop Act (Ill.Rev.Stat.1965, ch. 43, par. 135). Count II alleged a common law negligence action which specified five negligent acts or omissions of the defendants in serving liquor to Schleicher while he was intoxicated.

At the oral argument of the case it was agreed that Illinois was the place of residence of the plaintiff, the individual defendants, and Schleicher, and was the sole place of business of the corporate defendant.

The issues presented are:

(1) Whether the owners and operators of the three Illinois taverns are liable under the Illinois Dram Shop Act for injuries inflicted upon the plaintiff, an Illinois resident, by a drunken driver, also a resident of Illinois, whose intoxication resulted from the purchase of alcoholic beverages from the Illinois taverns, notwithstanding the fact that the accident occurred a short distance within the boundaries of the State of Wisconsin; and

(2) Whether a common law cause of action may lie against the three Illinois tavern owners and operators that knowingly and negligently served alcoholic beverages to an intoxicated person who thereafter inflicted injuries upon the plaintiff.

The first issue requires a determination of the extraterritorial effect of the Illinois Dram Shop Act; and the resolution of the second issue will depend upon whether the Illinois Courts are required to apply Wisconsin law, or may, in view of the fact that the plaintiff and the defendants are all residents of this State, apply the common law of this forum in determining whether a common law cause of action exists.

Section 14 of Article VI of the Liquor Control Act provides in pertinent part:

'Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his * * * own name * * * against any person * * * who by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person.'

And Section 1 of Article I of the Liquor Control Act provides:

'This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquor.' (Ill.Rev.Stat.1965, ch. 43, par. 94.)

It would thus appear that the Illinois Dram Shop Act is primarily an exercise of police power by the State, whereby the legislature sought to inhibit the sale of liquor to the extent that it causes intoxication, and that to achieve this, a penalty in the form of absolute liability is inflicted. The purpose of the Act seems to embrace both the regulation of the liquor traffic and redress for injury.

In Hernandez v. Diaz, 31 Ill.2d 393, at page 399, 202 N.E.2d 9, at page 13 (1964), the court stated:

'The statute was designed to give a substantial remedy and should be allowed to have effect according to its natural and plain meaning. Section 1 of article I of the Liquor Control Act states that the act shall be liberally construed to the end that the health, safety and welfare of the people of the State of Illinois shall be protected. Ill.Rev.Stat.1963, chap. 43, par. 94.

'It is clear that the legislature had the intention of protecting innocent parties from the acts of intoxicated persons.'

The court, in Hernandez, liberally construed the Act by holding that if an intoxicated person commits an act which has a direct causal relation to the injury of another, the injury is caused 'by' the intoxicated person. The court illustrated the effect of its holding by stating that if a drunken driver causes an innocent driver to leave the highway and injure a pedestrian, the pedestrian has been injured by the intoxicated person as much as if his vehicle had struck the injured person.

In Lichter v. Scher, 11 Ill.App.2d 441, 138 N.E.2d 66 (1956), the court, in discussing the purpose of the Act, stated at page 452, at page 71 of 138 N.E.2d:

'The Dram Shop Act is unique. * * *, it is designed to discipline a legal but illfavored trade. While it applies a remedy to mitigate the evils and dangers that flow from the liquor traffic, it is a remedy not necessarily based on fault or negligence. The owner of the premises or anyone who leases them, as well as the dramshop keeper, may become liable even though the sale was made to a customer when he was wholly sober, if the customer thereafter by drinks purchased elsewhere became intoxicated. It is therefore penal in a severe sense in its obvious purpose of subjecting to strict discipline those who embark in the liquor traffic and even those who as lessors or owners permit premises to be so used. It is true that in some cases courts have described the Act, insofar as it relates to damages, as remedial; that is to say, recovery is intended to reimburse for losses sustained by the evils growing out of the liquor traffic. This does not change the essentially disciplinary and regulatory character of the Act.'

However, the court in Howlett v. Doglio, 402 Ill. 311, at page 318, 83 N.E.2d 708, at page 712, 6 A.L.R.2d 790 (1949), stated:

'Although the Dram Shop Act is penal in character and should be strictly construed (Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L.R.A. 327; Meidel v. Anthis, 71 Ill. 241), the legislation is, at the same time, remedial and should be so construed as to suppress the mischief and advance the remedy. (Citations.)'

In Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 420, 199 N.E.2d 300, 8 A.L.R.3d 1402 (1964) and in cases cited therein, the court stated that the Illinois Dram Shop Act is in derogation of the common law, and like other such statutes, should be strictly construed. Thus, the expressions of our courts with reference to how the Act should be construed, are, at least, ambiguous.

The Supreme Court of Illinois has not determined whether the Illinois Dram Shop Act has extraterritorial effect, other than by denial of petition for leave to appeal in Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963), and in Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512, 22 A.L.R.2d 1123 (1950). The Appellate Court, however, has repeatedly held that the Dram Shop Act has no such effect. Colligan v. Cousar, supra, 38 Ill.App.2d 403, 187 N.E.2d 292; Butler v. Wittland, 18 Ill.App.2d 578, 583, 153 N.E.2d 106 (1958); Eldridge v. Don Beachcomber, Inc., supra, 342 Ill.App. 154, 95 N.E.2d 512.

In Rubitsky v. Russo's Derby, Inc., 70 Ill.App.2d 482, at page 484, 216 N.E.2d 680, at page 681 (1966), which was decided by this court, we stated, as obiter dictum:

'The law, often criticized in Illinois, is that the Dram Shop Act has no extraterritorial effect and hence would not apply to a situation, such as this one, where the injuries were sustained beyond the jurisdiction of the state.'

Butler and Eldridge were cited in Rubitsky as authority for this legal proposition. Eldridge does not recite the place of residence of the plaintiff, while in Butler, the parties litigant were all Illinois residents. Thus, Eldridge appears to have differed factually from the case at bar in which the plaintiff, the defendants, and the drunken driver, were all Illinois residents.

In Eldridge, the court followed Goodwin v. Young, 34 Hun. (N.Y.) 252, an 1884 decision, wherein a resident of Vermont sued the operator of a New York dramshop, who sold the plaintiff's servant liquor, which caused his intoxication, the neglect of plaintiff's team of horses and the death of one horse as the result thereof, upon the servant's return to Vermont. The court, in Eldridge, treated the act of injury to the plaintiff as the tortious conduct which gave rise to liability and held that since the injury occurred outside of Illinois, the Illinois Dram Shop Act was not applicable. The court did not consider the sale of liquor to be wrongful in that at common law it was not a tort either to sell or give away liquor to 'a strong and able-bodied man.' Howlett v. Doglio, supra, 402 Ill. 318, 83 N.E.2d; Cruse v. Aden, 127 Ill. 231, 234, 20 N.E. 73, 3 L.R.A. 327 (1889).

Eldridge also relied on the rule of statutory construction announced in Union Bridge & Construction Co. v. Industrial Commission, 287 Ill. 396, 398--400 incl., 122 N.E. 609 (1919); and in Dur-ite Co. v. Industrial Commission, 394 Ill. 338, 348, 349, 68 N.E.2d 717 (1946), where suits were brought under the ...