Maher v. Hendrickson
| Citation | 188 F.2d 700 |
| Decision Date | 10 May 1951 |
| Docket Number | No. 10308.,10308. |
| Parties | MAHER et al. v. HENDRICKSON et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Emerson Baetz, Alton, Ill., for appellants.
Charles E. Bliss, H. B. Hershey, Taylorville, Ill., for appellees.
Before KERNER, DUFFY and LINDLEY, Circuit Judges.
Plaintiffs, the widow and minor daughters of one Maher, now deceased, brought suit in the District Court against the defendants under the Dram Shop Law of Illinois, Ill.Rev.Stat.1947, Ch. 43, Sec. 135, to recover damages accruing to them, as they averred, because of Maher's death. The cause was tried by the court without a jury and resulted in judgment in favor of defendants.
The statute provides that every person who shall be injured, in person, 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 who shall, by selling alcoholic liquor, have caused the intoxication, in whole or in part. Under this Act, if one, by reason of intoxication, loses his life, the statutory beneficiaries may recover "if such intoxication was caused in whole or in part by intoxicating liquor sold him" by defendant. Brown v. Butler, 66 Ill.App. 86, 89. It is the public policy of Illinois, expressed by legislative act, that "He who deliberately sells that which he knows will * * * deprive the party of the control of his judgment, and render him, for the time being, incapable of exercising proper care for personal safety, or that of his property, must be prepared for the consequences that may follow." Emory v. Addis, 71 Ill. 273; Kennedy v. Whittaker, 81 Ill.App. 605.
There is no dispute that Maher was killed in a brawl with Morris, while both of them were intoxicated. The material question in issue in the trial court was whether their drunkenness was caused in whole or in part by liquor procured from defendants. It is clear that the two men were intoxicated at the time they entered defendants' tavern, continued to drink while there and were more affected by alcohol when they left than when they arrived. There is, however, a sharply controverted question as to whether defendants sold Maher and Morris the liquor which they admittedly consumed.
The District Court made a finding of fact, "That the plaintiffs have failed to prove by the preponderance of the evidence that * * * Maher or * * * Morris were sold or given any intoxicating beverages by Fuller in defendant Hendrickson's tavern in * * * Alton, * * * which caused in whole or in part such intoxication of Maher and Morris." It made no specific finding as to whether defendants sold liquor to either of the two men and none as to whether, if liquor was sold to them, it caused, in whole or in part, their intoxication. The finding, therefore, is not...
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