Robertson v. White

• Citation: 11 Ill.App.2d 177,136 N.E.2d 550
• Decision Date: 26 June 1956
• Docket Number: Gen. No. 46779
• Parties: Jacqueline ROBERTSON, Administrator of the estate of Steven C. Robertson, deceased, and Jacqueline Robertson, Appellants, v. Erin WHITE, Harold Weil and Harry Wolff, d/b/a Dearborn Liquor Store and Tavern, and John Blakely, Appellees.
• Court: United States Appellate Court of Illinois

Page 550

136 N.E.2d 550

11 Ill.App.2d 177

Jacqueline ROBERTSON, Administrator of the estate of Steven

C. Robertson, deceased, and Jacqueline Robertson, Appellants, v. Erin WHITE, Harold Weil and Harry Wolff, d/b/a Dearborn

Liquor Store and Tavern, and John Blakely, Appellees.

Gen. No. 46779.

Appellate Court of Illinois, First District, Second Division.

June 26, 1956.

Joseph Barbera, Chicago, Charles D. Snewind, Chicago, of counsel, for appellants.

Robert L. Brody, George J. Gore, Chicago, for appellees.

SCHWARTZ, Judge.

This is an action under the Dram Shop Act (Ill.Rev.Stat.1955, Ch. 43, Par. 135). The complaint charges that the defendants in the operation of their dram shop served liquor to one Blakely, contributing to his intoxication; that as a result of his intoxication Blakely drove his automobile over Steven Robertson, plaintiff's four year old son, causing his death, and that thereby plaintiff suffered loss of means of support for which she seeks $15,000 damages. Plaintiff was required to answer interrogatories which disclosed that the decedent had no income by employment or otherwise. On defendants' motion the action was dismissed, and plaintiff appeals.

The sole question before us is whether a suit by a parent under the Dram Shop Act can be predicated upon the death of a child who at the time of his death was not contributing to the support of the parent. There is no case in Illinois or elsewhere, so far as we can find, which has passed on this specific question.

Two assumptions must be made at the outset in order that the scope of our ultimate conclusions may be properly understood. First, a child of four years who is not shown to have a peculiar ability, such for example as child prodigies of the stage, is unable to contribute to the support of his parents. Secondly, such inability will continue for years, but the period of minority is not necessarily the proper measure thereof.

The Dram Shop Act provides that every person who is 'injured, in person or property, or means of support, by any intoxicated person * * * shall have a right of action * * * against any person * * * who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and [against] 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 * * *.'

Plaintiff contends (1) that the phrase 'means of support' as construed by cases under the Dram Shop Act includes a potentiality of future support adequate to cover the instant case, and (2) that a presumption of injury to means of support should be created by analogy to a similar presumption employed in an action under the Injuries Act or Wrongful Death Act, as we will sometimes refer to it, (Ill.Rev.Stat.1955, Ch. 70, Pars. 1, 2) by a parent for the death of a minor child.

In all actions under the Dram Shop Act damages are based on a loss of future means of support, but in the ordinary case support is presently being rendered and it is presumed that it will continue. Plaintiff's argument requires the larger presumption that a child of four would at some time in the future have earned income and contributed a part of it toward plaintiff's support. No legal obligation to support would arise unless plaintiff became indigent, within the terms of the Public Assistance Code. Shaver v. Brierton, 1954, 1 Ill.App.2d 192, 117 N.E.2d 298. It should also be noted, however, that despite some earlier decisions to the contrary, see Jury v. Ogden, 1894, 56 Ill.App. 100, support actually though voluntarily contributed is sufficient and there need not be a legal claim to support. Pearson v. Renfro, 1943, 320 Ill.App. 202, 50 N.E.2d 598.

In McClure v. Lence, 1952, 345 Ill.App. 158, 164, 102 N.E.2d 546, 549, the court considered the differences between the Wrongful Death Act and the Dram Shop Act and with respect to the phrase 'means of support' used in the Dram Shop Act said it 'is literally construed to require as a prerequisite to recovery that the decedent did in fact render support, whether or not he was legally required to do so, and is thus a considerably more restricted measure of damages than the 'pecuniary injury' yardstick.' In Buck v. Maddock, 167 Ill. 219, 225, 47 N.E. 208, 210, the court apparently concurred in an instruction that recovery could not be had unless it was shown that there was a 'direct loss to their means of support'. The court did say that the instruction was more favorable to the defendants than the law would justify, taking away from the jury entirely the allowance of punitive damages. In Meidel v. Anthis, 1874, 71 Ill. 241, and McMahon v. Sankey, 1890, 133 Ill. 636, 24 N.E. 1027, 1029, the courts reject the argument that an immediate reduction in support income must be shown. In both cases language was used defining loss of means of support as embracing all those resources from which the necessaries and comforts of living are or may be supplied--"any resource from which the wants of life may be supplied." This language was taken from the Ohio cases of Schneider v. Hosier, 21 Ohio St. 98, and Mulford v. Clewell, 21 Ohio St. 191, but there is no indication that this capacity need not be presently shown by the earning and contributing of services or income.

In Betting v. Hobbett, 142 Ill. 72, 30 N.E. 1048, and Flynn v. Fogarty, 1883, 106 Ill. 263, statements are made that in an action by a wife, loss of means of support is shown by proof of death of the husband. Again, however, these cases make it clear that proof of present earning capacity is a necessary part of the action.

In Leverenz v. Stevens, 1906, 124 Ill.App. 401, it was held that a wife may recover in an action based on the habitual drunkenness of her husband, without proof of support. But that case is one of many which refuses to relieve a defendant from liability on the ground that the husband, prior to the sale in question, had already become a habitual drunkard.

In most of the dram shop cases we have examined action has been instituted by a wife seeking to recover because of injury due to the intoxication of her husband, and in each instance there was an immediate duty to support coupled with the present prospect of such support, save for the intoxication, which served as a base for the assessment of damages. It is a fair conclusion that while more general language than this has been used at times by courts, there is no support in precedent in dram shop cases for damages based on a future potentiality of support not presently provable.

Plaintiff's second argument draws an analogy between dram shop cases and the Wrongful Death Act (Ch. 70, Pars, 1, 2, Ill.Rev.Stat.1955). The latter creates a right of action for death caused by wrongful act, neglect or default (provided the act, neglect or default is such as would have entitled the deceased to maintain an action therefor), and the measure of damages is fixed as 'pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person * * *.' Courts have agreed that despite the use of the phrase 'pecuniary injuries,' a 'presumption of loss' exists in cases where the action is brought in behalf of a spouse or by next of kin who bears a lineal relationship to the deceased. Dukeman v. Cleveland, C., C. & St. L. R., 1908, 237 Ill. 104, 86 N.E. 712; Chicago, P. & St. L. R. Co. v. Woolridge, 1898, 174 Ill. 330, 51 N.E. 701; Chicago & Alton R. Co. v. Shannon, 1867, 43 Ill. 338; City of Chicago v. Scholten, 1874, 75 Ill. 468; Wilcox v. Bierd, 1928, 330 Ill. 571, 162 N.E. 170; Howlett v. Doglio, 1949, 402 Ill. 311, 83 N.E.2d 708, 6 A.L.R.2d 790. Collaterals, including brothers and sisters, do not benefit by the presumption. In such cases, an actual showing of having received financial assistance is required. Rhoads v. Chicago & Alton R. Co., 1907, 227 Ill. 328, 81 N.E. 371, 11 L.R.A.,N.S., 623.

In announcing and stating the presumption in death cases no general rationale is set forth which would serve to explain how it is derived from the phrase 'pecuniary injuries.' 'Pecuniary' in the ordinary sense relates to money and monetary affairs. It has been specifically held that the pain and suffering of bereavement is noncompensable in both death and dram shop cases, and this therefore cannot be considered the basis for the presumption. City of Chicago v. Major, 1857, 18 Ill. 349, 360; Flynn v. Fogarty, 1883, 106 Ill. 263; Freese v. Tripp. 1873, 70 Ill. 496. We must examine the precedents further...