Kurth v. Amee, Inc.

• Decision Date: 31 January 1972
• Docket Number: Gen. No. 71--67
• Parties: Glenda KURTH, Plaintiff, and Letha J. Watson, Plaintiff-Appellant, v. AMEE, INC., an Illinois Corporation, d/b/a Uptown Tap, and Jack A. Corona, d/b/a The Blackhawk, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 162

278 N.E.2d 162

3 Ill.App.3d 506

Glenda KURTH, Plaintiff and Letha J. Watson, Plaintiff-Appellant, v. AMEE, INC., an Illinois Corporation, d/b/a Uptown Tap, and Jack A. Corona, d/b/a The Blackhawk, Defendants-Appellees.

Gen. No. 71--67.

Appellate Court of Illinois, Second District.

Jan. 31, 1972.

Tuite, Morrissey & Gesmer, Joseph A. Morrissey, Rockford, for plaintiff-appellant.

Gilbert, Powers & Graves, Rockford, for defendants-appellees.

ABRAHAMSON, Justice.

The appellant, Letha J. Watson, brings this appeal from an Order entered September 18, 1970 by the Circuit Court of the 17th Judicial Circuit, Winnebago County, that dismissed her complaint brought under the Dram Shop Act (Ill.Rev.Stat.1969, Ch. 43, sec. 135). That order did not dispose of all issues raised in the complaint but failed to include an express written finding that there was no just reason for delaying appeal as required by Supreme Court Rule 304. (Ill.Rev.Stat.1969, ch. 110A, sec. 304). A motion to vacate was denied on December 30 and that order included the necessary finding.

The complaint, brought in eight counts and filed on February 16, 1970, alleged that Glenda Kurth and Letha Watson were injured in an automobile accident caused by one Robert W. Menge that occurred on Mrach 20, 1969 in Rockford, Illinois. The complaint alleged that Menge was intoxicated at the time of the accident and that the defendants had sold or furnished alcoholic liquor to him that caused his intoxication. The first four counts relate to the cause of action of Glenda Kurth that is not involved in this appeal. Counts 5 through 8, brought by the appellant, sought actual and punitive damages against each of the defendants in the amounts of $150,000 and $200,000 respectively. Counts 6 and 8, relative to the punitive damages, were dismissed earlier since punitive or exemplary damages are not recoverable under the Dram Shop Act.

On September 3, the defendants moved to dismiss Counts 5 and 7 on the grounds that the appellant had, on January 9, 1970, executed a covenant not to sue in favor of Menge in consideration of the payment of $24,000 received from him. The court took the matter under advisement and on September 18 dismissed the remaining counts pertaining to the claims of the appellant on the grounds that she was only entitled to one recovery and had already received more than the maximum amount recoverable under the Dram Shop Act.

The amount of damages recoverable under the Dram Shop Act is to be determined by a jury and the jury is to make that determination '. . . without regard to and with no special instruction as to the dollar limits on recovery . . .' Ill.Rev.Stat.1969, ch. 43, sec. 135. Although there is an unfortunate confusion in the reported cases, it now appears well established, and is not disputed here, that the amount received for a covenant not to sue one against whom tort liability could lie will be deducted from the damages recoverable against other parties whose tort liability arises from the same circumstances. Aldridge v. Morris, 337 Ill.App. 369, 380, 86 N.E.2d 143.

The defendant argues that in actions arising under the Dram Shop Act the amount received from another tort-feasor for a covenant not to sue is to be deducted from the maximum recoverable under the Act. If this were true, the appellant has already received in excess of the maximum and a jury determination of her actual damages would be, as the trial court believed, an exercise in futility. The appellant, on the other hand, maintains that the proper procedure is to deduct any amounts received for a covenant from the total damages sustained and then apply the limits of the Act to the difference, if any.

In DeLude v. Rimek (351 Ill.App. 466, 115 N.E.2d 561), cited by both parties as authority for their respective positions, the plaintiffs were injured in an automobile accident caused by one Earl MacNevin while he was intoxicated. Suit was brought under the Dram Shop Act against the owners of two establishments that had allegedly furnished MacNevin the alcohol that caused his intoxication. During the trial the plaintiffs were repeatedly cross-examined in regard to a covenant not to sue furnished MacNevin and the jury was instructed that the amounts received for the covenant should be considered in their assessment of damages. The court pointed out the obvious prejudice created by this course and said at page 474, 115 N.E.2d at page 565:

'While the amount paid under a covenant not to sue should be deducted from the total damages sustained, we hold it is the function of the jury to find the plaintiff's total damages, and the function of the judge, upon application of the defendant after verdict, to find the amount by which such verdict should be reduced by virtue of any covenant made by the plaintiff with another concerned in the commission of the tort.'

In the case of Slone v Morton (39 Ill.App.2d 495, 188 N.E.2d 493) suit was brought under the Dram Shop Act and sought judgment for $20,000 for loss of...