Klopp v. Benevolent Protective Order of Elks, Lodge No. 281

• Decision Date: 01 April 1941
• Docket Number: Gen. No. 9255.
• Citation: 309 Ill.App. 145,33 N.E.2d 161
• Parties: KLOPP v. BENEVOLENT PROTECTIVE ORDER OF ELKS, LODGE NO. 281.
• Court: United States Appellate Court of Illinois

309 Ill.App. 145

33 N.E.2d 161

KLOPP

v.BENEVOLENT PROTECTIVE ORDER OF ELKS, LODGE NO. 281.

Gen. No. 9255.

Appellate Court of Illinois, Third District.

Feb. 25, 1941.

As Modified on Denial of Rehearing April 1, 1941.

Appeal from Circuit Court, McLean County; William C. Radliff, Judge.

Action by Earle J. Klopp against the Benevolent Protective Order of Elks, Lodge No. 281, a nonprofit corporation, under the Dram Shop Act to recover damages for injuries sustained by plaintiff. Judgment for plaintiff, and defendant appeals.

Affirmed. Branson Wright, of Bloomington, Lord, Bissell & Kadyk, of Chicago, and Thomas S. Weldon, of Bloomington (Gordon R. Close and Herbert C. Brook, both of Chicago, of counsel), for appellant.

Stone & Taylor, of Bloomington, for appellee.

RIESS, Justice.

This appeal seeks to reverse a judgment in the sum of $2,500 entered by the Circuit Court of McLean County against the defendant appellant, Benevolent Protective Order of Elks, Lodge No. 281, a nonprofit corporation, in an action brought by the plaintiff, Earle J. Klopp, under the Dram Shop Act (Sec. 135, Chapter 43, Illinois Revised Statutes, 1939) for damages arising out of injuries sustained by him.

The case was tried upon its merits by the Court without a jury. No evidence was offered by the defendant. At the conclusion of the evidence, defendant moved to dismiss the suit, which motion was denied and the judgment was entered.

The defendant contends that the selling or giving of intoxicating liquor by defendant was not the proximate cause of the injury and damages complained of and that the evidence failed to establish due care on the part of the plaintiff.

The evidence offered by the plaintiff disclosed in substance that the defendant maintained club rooms at Bloomington, Illinois, which consisted principally of two rooms, the front or west room, in which there were dining tables, chairs and a small dance floor, and the main club room containing card tables, lounging chairs, radio and a bar. Food and liquor were served members on the premises, and all of the receipts derived therefrom, remaining after payment of expenses, were turned over to the Treasurer to be used for various purposes of the Lodge.

On the evening of February 26, 1938, plaintiff, a member of the defendant Lodge, accompanied by his wife and a friend, were at the club rooms. During the course of the evening, A. C. Bartlett, a member of the defendant Lodge, became intoxicated as a result of liquor served to him in the club rooms, and some time after two o'clock A. M. he engaged in an argument with the bartender. The bartender, steward and several members of the Club forcibly put him out of the club rooms. He remained in the vestibule with the steward for ten or fifteen minutes, and asked to be permitted to get his hat and coat to go home. As he returned to the club rooms, he made an offensive remark to one of the members who was standing near the door. The member resented the remark and started toward him. This caused a general struggle along the wall of the main club room toward the bar. Plaintiff's wife, who was going towards the front room, was knocked down between the end of the bar and the entrance of the vestibule door. In the meantime, plaintiff came out of the washroom and was walking toward the front room. He saw his wife on the floor, and in attempting to go to her assistance, he was knocked or fell to the floor, and in some manner sustained a fracture of his leg. While they were lying on the floor, one Fred Callans ran from the front room and jumped on a pile of men, and the defendant claimed that the injuries suffered by the plaintiff were caused by the act of Fred Callans, although the plaintiff testified that he did not know for certain when he received the injuries. The statement that Callans was sober when he left his table in the adjoining room where he had been eating and drinking and joined in the general melee is a mere conclusion. Callans admitted that he had come from his place of employment as a barkeeper after one o'clock and drank three or four bottles of beer at the Elk's Club within the hour after his arrival. The hour was very late and drinking had been general among the patrons present. There is no evidence that plaintiff's injuries were inflicted by the person to whom Bartlett addressed insulting language. It happened after the plaintiff had returned from the washroom and saw his wife on the floor, during the course of a second general fight, that the plaintiff was injured. Defendant's barkeepers and attendants were then undertaking to quell and evict Bartlett for a second time, and it was during this fight which had become a common brawl, spoken of by one of the witnesses as “disgusting”, that Klopp, who was seeking to go to the aid of his wife, was injured. The defendant offered no evidence upon the trial of this cause, and the sole question presented by this record is whether or not the Court erred in denying defendant's motion to find it not guilty at the close of all the evidence, and in entering judgment against the defendant and in favor of the plaintiff.

Defendant's theory is that the injuries suffered by the plaintiff “were not the result of the intoxication of any of the members of the Club, but of an independent intervening cause, which, according to defendant's theory, was a malicious assault by a non-intoxicated person.” A fair reading of the abstract of testimony given by the various witnesses will not, however, bear out defendant's conclusions.

Some confusion has arisen as to what constitutes proximate cause in cases of this character. In the case of Shugart v. Egan, 83 Ill. 56, 25 Am.Rep. 359, cited by appellant, a judgment for the plaintiff widow for injuries resulting from the killing of her husband by a third person was reversed in a majority opinion with two dissents. There, the deceased, while intoxicated, had insulted a third party who later stabbed and killed him away from the premises where the liquor was sold. Other cases are cited which we have carefully read and considered, but believe it would serve no useful purpose to discuss them, since the facts in each distinguish them from the case at bar.

We deem the language of the Supreme Court in Triggs v. McIntyre, 215 Ill. 369, 372, 74 N.E. 400, 402, to state the rule applicable to and controlling under the facts herein, and an answer to defendant's contention as to proof of proximate cause, viz: “In Schroder v. Crawford, 94 Ill. 357, 34 Am.Rep. 236, the facts showed that an intoxicated person, in going to his home in the night, had to cross a railroad, and next morning was found on the track, killed by being run over by a train of cars; and it was there held that the intoxication was the proximate cause of his death, and that the party furnishing him the liquor, and the owner of the premises where the liquor was furnished to him, were liable to his widow, under the statute for injury to her means of support; and in that case we said (page 361, 94 Ill. ): ‘It was not the intention that the intoxicating liquor alone, of itself,...