Hyba v. C.A. Horneman, Inc.

• Decision Date: 30 November 1939
• Docket Number: Gen. No. 9457.
• Citation: 23 N.E.2d 564,302 Ill.App. 143
• Parties: HYBA ET AL. v. C. A. HORNEMAN INC., ET AL.
• Court: United States Appellate Court of Illinois

302 Ill.App. 143

23 N.E.2d 564

HYBA ET AL.

v.C. A. HORNEMAN INC., ET AL.

Gen. No. 9457.

Appellate Court of Illinois, Second District.

Sept. 22, 1939.

Rehearing Denied Nov. 30, 1939.

Appeal from Circuit Court, Winnebago County; Arthur E. Fisher, Judge.

Action by Mary Hyba and others against C. A. Horneman, Incorporated, and others, under a provision in the Dram Shop Act authorizing action for damages caused by intoxication, for death of Mary Hyba, deceased, who was killed in an automobile accident alleged to have been caused by driver's intoxication. From a judgment dismissing the complaint, the plaintiffs appeal.

Reversed and remanded, with directions.Clifford A. Pedderson, of Rockford, for appellants.

Lord, Bissell & Kadyk, of Chicago, and William D. Knight, of Rockford, for appellees.

HUFFMAN, Justice.

This action was brought by appellants against appellees under the civil damage section of the Dram Shop Act (sec. 135, ch. 43, Ill.Rev.Stat.1937), which section provides that: “Every husband, wife, child, parent * * * 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, * * * of any person, shall have a right of action * * * severally or jointly, against any person or persons who shall, * * * have caused the intoxication, in whole or in part, of such person.”

The complaint alleges appellants to be the parents and brother and sister of Mary Hyba, deceased; that while she was riding in an automobile with Wilson B. Lowery, as his guest, on November 20, 1937, she was killed in an accident alleged to have been caused by his intoxication. It is alleged that his intoxication was produced by defendant-appellees. The complaint alleged that the deceased was steadily employed and earned an annual income of $1,800, from which she contributed materially to the support of appellants.

Appellees filed their motion to dismiss the complaint on the ground that appellant, Anthony Hyba, as father and administrator of the estate of Mary Hyba, deceased, instituted an action under the Injuries Act, ch. 70, Ill.Rev.Stat.1937, against Wilson B. Lowery for her wrongful death; that appellants in that action were the next of kin of the deceased, and therefore the same persons as bring this suit; that the suit against Wilson B. Lowery under the Injuries Act was settled for the sum of $2,500; and that this action under the Dram Shop Act will not lie. It appears that the suit under the Injuries Act was terminated by a covenant not to sue based upon the payment of $2,500.

The court granted the motion of appellees to dismiss this action brought under the Dram Shop Act. It is the position of appellees that the Injuries Act and the Dram Shop Act are each exclusive of the other, and the rights created thereunder not cumulative; that where a party elects to bring a suit, as was done here, under the Injuries Act against an alleged wrongdoer, he thereby elects to pursue that remedy and is barred from bringing suit under the Dram Shop Act against persons producing the intoxication of the wrongdoer, whose consequent acts resulted in the injuries. Appellees urge that where a party brings a suit, which he may bring only by reason of a statute, he thereby elects to pursue the remedy provided by that statute, to the exclusion of any other remedy. Appellants urge that the Injuries Act and the Dram Shop Act are separate and distinct, that the causes of action therein created are separate and distinct, and that bringing suit under the one does not bar suit under the other. Thus, the case is presented to this court. The question appears to be somewhat unsettled by judicial decision in this state and no like case in any other jurisdiction has been called to our attention.

The common law gave no remedy for the sale of liquor either on the theory that it was a direct wrong or on the ground that it was negligence, which would impose a legal liability on the seller for damages resulting from intoxication. Neither did the common law provide for survival of actions for wrongful death. The right of action created by the acts under consideration herein are purely statutory. To supply the defect of the common law in the way of remedy for injuries or damages caused by intoxication, the legislatures of most of the states have passed statutes creating the right of action therefor. Such statutes have uniformly been upheld. However, they are penal in character and therefore should be strictly construed. Cruse v. Aden, 127 Ill. 231, 239, 20 N.E. 73,3 L.R.A. 327. But the prevailing view is that such legislation is remedial and should be so construed as to suppress the mischief and advance the remedy.

[4] The survival of action for wrongful death came into existence by virtue of the act of February 12, 1853. Its intended purpose is manifest and it was designed for the exclusive benefit of the widow and next of kin of the deceased person. By its terms, action thereunder cannot be maintained except in such cases as the injured party himself could maintain. No such restrictions exist under the Dram Shop Act. There, recovery may be had by any person injured in their person, or property, or of their means of support, even though there could be no recovery for wrongful death, under the Injuries Act, and even though the deceased person could not have maintained an action for his injuries had death not ensued. Schroder v. Crawford, 94 Ill. 357, 34 Am.Rep. 236;Meyer v. Butterbrodt, 146 Ill. 131, 134, 34 N.E. 152;Triggs v. McIntyre, 215 Ill. 369, 374, 74 N.E. 400.

Civil Damage statutes with reference to keeping dram shops are similar in purpose and therefore have a general similarity in their terms and provisions. The evident object is to punish those who furnish means of intoxication by making them liable in damages caused thereby. Such statutes are generally designed to embrace and include all injuries produced by the intoxication which legitimately result therefrom. To maintain an action under the Dram Shop Act against the vendor of liquor, it is not necessary that action should also be maintainable against the intoxicated person. There are many cases where suits result under such act based upon injury to means of support due to the husband's loss of earning power. It is sufficient if any person has been injured as provided by the act.

The case of Brockway v. Patterson, 72 Mich. 122, 40 N.W. 192, 1 L.R.A. 708, was an action by the wife under a Civil Damage Act relative to the keeping of dram shops, similar to that in force in this state. It was there...