Rogers v. Dwight

• Decision Date: 06 November 1956
• Docket Number: No. 55-C-326.,55-C-326.
• Citation: 145 F. Supp. 537
• Parties: Laverne ROGERS, individually and as next friend of Donald Rogers and Allen Rogers, minors, Plaintiffs, v. George DWIGHT and Margaret Dwight, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

145 F. Supp. 537

Laverne ROGERS, individually and as next friend of Donald Rogers and Allen Rogers, minors, Plaintiffs, v. George DWIGHT and Margaret Dwight, Defendants.

No. 55-C-326.

United States District Court E. D. Wisconsin.

November 6, 1956.

Hugh M. Matchett, Frank E. O'Reilly, Chicago, Ill., Brooke Tibbs, Milwaukee, Wis., for plaintiffs.

Wolfe, O'Leary & Kenney, Milwaukee, Wis., for defendants.

GRUBB, District Judge.

This action is before the court on defendants' motion to dismiss the complaint on the ground that the complaint fails to state a claim upon which relief can be granted.

Count I of the complaint is brought under the provisions of Chapter 43, § 135, of the Illinois Revised Statutes, commonly referred to as the Illinois Dram Shop Act. That statute provides:

"Every husband, wife, child, parent, guardian, employer 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, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and 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, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid, as hereinafter provided; * * *."

Count II of the complaint is brought under another statute, Chapter 43, § 131, of the Illinois Revised Statutes. That statute provides:

"No licensee * * * shall sell, give or deliver alcoholic liquor to any minor, or to any intoxicated person or to any person known by him to be an habitual drunkard, spendthrift, insane, mentally ill, mentally deficient or in need of mental treatment."

Plaintiffs allege that defendants owned, rented or leased a certain building in Chicago, Illinois, with knowledge that alcoholic liquors were to be sold therein; that said defendants sold or gave one Joseph Rogers, the husband of Laverne Rogers and father of Donald and Allen Rogers, alcoholic liquor which, in whole or in part, caused him to be intoxicated, habitually and otherwise. It is further alleged that as a consequence of Joseph Rogers' habitual drunkenness, the plaintiffs have suffered from lack of support and have sustained other damages.

In their motion to dismiss the complaint, defendants specify five particular objections to the complaint. Those objections will now be discussed.

1. Defendants allege that Count I of the complaint is vague and indefinite as to the time or times at which defendants are alleged to have sold or given alcoholic liquors to Joseph Rogers. Vagueness or indefiniteness is not a ground for dismissing a complaint.

"Mere vagueness or lack of detail is not ground for a motion to dismiss, (for failure to state a claim) but should be attacked by a motion for a more definite statement." (Parenthesis supplied.) 2 Moore's Federal Practice (2d Ed.) § 12.08.

2. Defendants allege that the complaint pleads evidence as a ground of dismissal. Under the Federal rules, pleading evidence is no longer a ground for dismissal of an action as long as it appears that the plaintiff is entitled to relief.

"The modern philosophy concerning pleadings is that they do little more than indicate generally the type of litigation that is involved. A generalized summary of the case that affords fair notice is all that is required. Pleadings shall be so construed as to do substantial justice. Securities and Exchange Comm. v. Timetrust, Inc., D.C.Cal., 1939, 28 F.Supp. 34, 41. (Emphasis supplied.) Accord, Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631, 635.

"Under the `notice' theory of pleading it is immaterial whether a pleading states `conclusions' or `facts' as long as fair notice is given, * * *" 2 Moore's Federal Practice, § 8.13.

3. Defendants contend that Count I of the complaint shows on its face that the cause of action is barred by virtue of the provisions of Section 135, Chapter 43 of the Illinois Revised Statutes in that the cause of action was not commenced within two years after it accrued.

The portion of Section 135 in question states:

"* * * every action hereunder shall be commenced within two years next after the cause of action accrued."

Neither counsel nor the court have been able to find any Illinois decisions which discuss the application of the above quoted statute. For that reason, this court must construe the statute in question.

In order to properly interpret the statute of limitations, it will be helpful to consider some of the Illinois decisions which have a somewhat indirect bearing on this issue. In Haw v. 1933 Grill, Inc., 1938, 297 Ill.App. 37, 17 N.E.2d 70, the court indicated that under certain circumstances proximate cause would have to be shown by the plaintiff in order to effect a recovery. It was held in Hyba v. C. A. Horneman, Inc., 1939, 302 Ill.App. 143, 23 N.E.2d 564, that the Dram Shop Act is similar in purpose, terms and provisions to the Wrongful Death Statute, S.H.A. ch. 70, § 1 et seq. Thus it appears that recovery under the Dram Shop Act sounds in tort.

In Howlett v. Doglio, 1949, 402 Ill. 311, 83 N.E.2d 708, 712, 62 A.L.R.2d 790, the court stated:

"The statute itself proclaims its purpose in section 1, which declares that the act shall be liberally construed, to the end that the health, safety and welfare of the People of this State shall be protected * *."

It was further stated in Economy Auto Insurance Co. v. Brown, 1948, 334 Ill. App. 579, 79 N.E.2d 854, 855:

"The courts have held that the objective of this provision is to encourage temperance in the consumption of alcoholic beverages by making those who furnish the means of intoxication liable for the damage caused thereby * * *.

"To effectuate this objective, the statute has been construed to confer two separate and distinct causes of action, * * *."

The above cases point out the object of the Dram Shop legislation, that is, the public policy of the state of Illinois. In the construction of the statute, it is of utmost importance that we keep that public policy well in mind. Habitual drunkenness and its effect on the support and welfare of dependents is a condition which generally develops over a long period of time. Since the Illinois legislature...