Howlett v. Doglio

• Decision Date: 19 January 1949
• Docket Number: No. 30805.,30805.
• Citation: 83 N.E.2d 708,402 Ill. 311
• Parties: HOWLETT v. DOGLIO et al.
• Court: Illinois Supreme Court

402 Ill. 311

83 N.E.2d 708

HOWLETT

v.DOGLIO et al.

No. 30805.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Christian County; Ward P. Holt, Judge.

Action by Hattie Howlett against Lena Doglio and Irene Giacopazzi for death of Dorothy M. Lawler, deceased.From judgment of Appellate Court reversing judgmnts for plaintiff, 79 N.E.2d 864, 334 Ill.App. 512, plaintiff appeals.

Judgment of Appellate Court affirmed.

Harold Broverman and Scott Hoover, both of Taylorville, for appellant.

Hershey & Bliss, of Taylorville, and Ekern, Meyers, & Mathias, of Chicago (Donald L. Thompson, of Chicago, of counsel), for appellees.

WILSON, Justice.

This appeal presents for decision the construction of section 14 of the Liquor Control Act, commonly known and herein referred to as the Dram Shop Act, (Ill.Rev.Stat.1947, chap. 43, par. 135,) which, so far as relevant, 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; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages'.

From the pleadings and the evidence it appears that, on July 10, 1946, Lena Doglio and Irene Giacopazzi were each engaged in the business of operating taverns in Christian County, known as ‘Lena's tavern’ and ‘Louie's Tavern,’ respectively.Both women sold and served alcoholic liquor at retail under licenses issued by the county and the State.On the day named, Mannis McGarvey was served several drinks of intoxicating liquor in each of the taverns by the respective proprietors and, as a direct and proximate result, became intoxicated.McGarvey, while under the influence of the intoxicants imbibed in the taverns of defendants, operated an automobile on State RouteNo. 104, in Christian County, proceeding in an easterly direction.At the same time, Dorothy M. Lawler was riding as a passenger in an automobile on the same highway in a westerly direction.The two automobiles collided at a point near the eastern edge of the village of Kincaid when McGarvey, still under the influence of the intoxicating alcoholic liquor, proceeding in the left-hand lane, drove his automobile directly into the path of the automobile in which Dorothy Lawler was riding.She sustained fatal injuries.

By her complaint filed in the circuit court of Christian County on January 2, 1947, the plaintiff, Hattie Howlett, mother of Dorothy M. Lawler, charged that the death of her daughter was the direct and proximate result of McGarvey's intoxication which, in turn, had resulted from his drinking intoxicating liquor in the taverns of the defendants, Lena Doglio and Irene Giacopazzi, and that ‘as a direct and proximate result of the death of Dorothy M. Lawler, the plaintiff, Hattie Howlett, has been damaged in her property in the sum of Ten Thousand ($10,000) Dollars,’ as against each defendant.Answering, defendants denied the material allegations of the complaint and, specifically, that plaintiff was entitled to recover damages in any amount against them.

The testimony of plaintiff is the only evidence bearing upon her claim for damages.She testified that her daughter, Dorothy Lawler, was eighteen years of age at the time of her death, unmarried, and had been living with her; that she had been employed at the ‘telephone office’ since Christmas, 1945, and that she was industrious, assisted with the household duties and ‘didn't throw her money away.’It also appears that Dorothy Lawler had previously worked with the telephone company and, also, in a drugstore and a variety store in Taylorville.Defendants offered no evidence in their own behalf, resting their defense upon the proposition that plaintiff suffered no ‘property’ damage from her daughter's death.

At the conclusion of plaintiff's evidence, defendants' motions for a directed verdict were denied.The jury returned verdicts in favor of plaintiff and against each defendant for $3,000.Judgments were entered on the verdicts.Motions for judgment notwithstanding the verdicts and for a new trial were made and denied.Upon an appeal prosecuted by defendants to the Appellate Court for the Third District, the judgments were reversed.334 Ill.App. 512, 79 N.E.2d 864.We have granted plaintiff's petition for leave to appeal.

Plaintiff did not allege, that, as the result of her daughter's death, she was injured ‘in person’ or her ‘means of support.’Her claim against each defendant was limited to damage ‘in her property.’To sustain the judgment of the Appellate Court, defendants maintain that the injury to ‘property’ for which recovery is allowed under the ameliorative provisions of the Dram Shop Act is limited to injury to tangible real or personal property and does not include ‘pecuniary injuries' resultant from death or wrongful act, as contemplated in the Injuries Act, commonly known as the Wrongful Death Act.In particular, defendants urge that when death results from the intoxication of another person, as here, a dependent person has no remedy against a tavern keeper under the Dram Shop Act except for loss to means of support, and that an action for injury to ‘means of support’ is not an action for injury ‘in property.’Plaintiff concedes that the person or the body of a human being is not property, stating she does not contend that human life, per se, is property.Her theory, briefly stated, is that the interest which nature and our form of society gives to each person in his lineal next of kin is ‘property,’ within the purview of the Dram Shop Act.She asserts, without citation of authority, that the law has long recognized that each individual has a definite interest or ‘stake,’ real or potential, in his lineal next of kin; that anyone of the lineal next of kin of every person may be presently, or in the future, a source of financial protection and welfare; that one may, at any time, fall upon evil days and, of necessity, turn to parents or children for aid, and, on the other hand, in the future, may conceivably inherit a substantial sum of money from a parent, grandparent or child if the person is allowed to live out his reasonable life expectuancy.

Plaintiff has recourse to section 2 of the Wrongful Death Act which provides that actions for causing death by wrongful act, neglect or default, shall be brought by and in the names of the personal representatives of the deceased person; that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the decedent and that, in every action, the jurors may award such damages as they shall deem a fair and just compensation with reference to the ‘pecuniary injuries' resulting from the wrongful death, to the wife and next of kin.Ill.Rev.Stat.1947, chap. 70, par. 2.In cases arising under the Wrongful Death Act, if the next of kin are lineal kinsmen of the deceased, a presumption of pecuniary loss obtains from the relationship, alone, sufficient to sustain a verdict and judgment awarding substantial damages, without proof of actual loss.Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170;Dukeman v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co., 237 Ill. 104, 86 N.E. 712;Grace & Hyde Co. v. Strong, 224 Ill. 630, 79 N.E. 967.The damages to collateral kindred, however, are only such actual damages as are proved.Rost v. F. H. Noble & Co., 316 Ill. 357, 147 N.E. 258;Rhoads v. Chicago and Alton Railroad Co., 227 Ill. 328, 81 N.E. 371, 11 L.R.A.,N.S., 623, 10 Ann.Cas. 111;Chicago, Peoria and St. Louis Railroad Co. v. Woolridge, 174 Ill. 330, 51 N.E. 701.Stated somewhat differently, ‘pecuniary injuries' are suffered by a widow and next of kin where the latter are lineal kindred of the deceased, irrespective of monetary damage, but are not necessarily sustained by collateral kin.The expression ‘pecuniary injuries,’ employed in the Wrongful Death Act, refers to a measurement of damages and is not synonymous with ‘injury in property,’ appearing in the Dram Shop Act.As pointedly observed in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 196, 57 L.Ed. 417, Ann.Cas.1914C, 176, ‘A pecuniary loss or damage must be one which can be measured by some standard.It is a term employed judicially, ‘not only to express the character of that loss to the beneficial plaintiffs which is the foundation of their right of recovery, but also be discriminate between a material loss which is susceptible of a pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.’Patterson, Railway Accident Law, s 401.'

The basic purposes and objectives of the Dram Shop Act and the Wrongful Death Act are essentially different.The latter affords a remedy for the benefit of widows and next of kin for ‘pecuniary injuries.’Section 14 of the Dram Shop Act creates...