Shepherd v. Marsaglia

• Decision Date: 31 July 1961
• Docket Number: Gen. No. 11426
• Citation: 176 N.E.2d 473,31 Ill.App.2d 379
• Parties: Edwin L. SHEPHERD, Sr., Priscilla M. Shepherd, Edwin L. Shepherd, Jr., a Minor, by Priscilla M. Shepherd, His Next Friend, and Edwin L. Shepherd, Jr. for the Use and Benefit of Edwin L. Shepherd, Sr. and Priscilla M. Shepherd, Plaintiffs-Appellants, v. James MARSAGLIA, d/b/a Jake's Tavern; Robert Deaton and James Stainbeck, d/b/a Circle Inn; Shirley Skuban, Marilyn Bersano, Edward Strohos and Bessie Strohos, d/b/a Strohos Inn; Milo Bricik and Bohmil Bricik, d/b/a Woodbine, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 473

176 N.E.2d 473

31 Ill.App.2d 379

Edwin L. SHEPHERD, Sr., Priscilla M. Shepherd, Edwin L Shepherd, Jr., a Minor, by Priscilla M. Shepherd, His Next Friend, and Edwin L. Shepherd, Jr. for the Use and Benefit of Edwin L. Shepherd, Sr. and Priscilla M. Shepherd Plaintiffs-Appellants, v. James MARSAGLIA, d/b/a Jake's Tavern; Robert Deaton and James Stainbeck, d/b/a Circle Inn; Shirley Skuban, Marilyn Bersano, Edward Strohos and Bessie Strohos, d/b/a Strohos Inn; Milo Bricik and Bohmil Bricik, d/b/a Woodbine Defendants-Appellees.

Gen. No. 11426.

Appellate Court of Illinois, Second District, Second Division.

July 31, 1961.

Rehearing Denied Sept. 1, 1961.

Peacock & Peacock, Morris, for appellants.

Moran, Klockau, McCarthy, Schubert & Henss, Rock Island, August B. Black, Morris, Heineke, Conklin & Schrader, Chicago, Richard Wilder, Root & Malmquist, Dunn & Hayes, Morris, McKinley & Price, Chicago, for appellees.

WRIGHT, Justice.

This is an appeal from an order entered by the Circuit Court of Grundy County, Illinois, dismissing Counts I, II and IV of plaintiffs' complaint and entering judgment in favor of the defendants. The complaint originally consisted of four counts but Count III was dismissed on oral motion of plaintiffs.

Count I of the complaint referred to by the parties as a 'common law' count alleges in substance that plaintiff, Edwin L. Shepherd, Jr., is the son of plaintiffs', Edwin L. Shepherd, Sr., and his wife Priscilla M. Shepherd, and that he was on the 23rd day of October, 1957, a minor of the age of nineteen years. That on said date defendants were owners and operators of certain taverns and that the defendants either personally, or by their agents or employees, did on said date negligently, carelessly, wilfully, intentionally and unlawfully, give, sell and dispense to the said Edwin L. Shepherd, Jr., a minor, intoxicating liquor which he consumed, and that they knew or should have known that Edwin L. Shepherd, Jr., was a male infant under the age of twenty-one years, and that at the time of said sales or gifts the defendants knew or should have known that Edwin L. Shepherd, Jr., was an intoxicated person. It is further alleged that as direct and proximate result of the sale or gift of the intoxicating liquor to the said minor and his consumption thereof he became intoxicated, and while so intoxicated, did drive a certain automobile off of the main traveled portion of a highway striking a utility pole causing serious personal injuries to himself.

Damages are prayed on behalf of all three plaintiffs against all defendants under Count I in the sum of $100,000.

Count II is also referred to by the parties as a 'common law' count and prays judgment on behalf of all three plaintiffs against all defendants in the sum of $100,000.

All of the allegations alleged in Count I are realleged in Count II, and in addition, Count II alleges a violation of Section 12 of Article VI of the Dram Shop Act, Ill.Rev.Stat.1959, c. 43, § 131 which provides in substance that no dram shop licensee, agent or employee of such 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.

Count IV is referred to as a 'property damage' count and is brought by the parents of the minor under Section 14 of Article VI of the Dram Shop Act. No relief is prayed for the minor plaintiff, Edwin L. Shepherd, Jr., in this count. Substantially the same factual situation is alleged in this count as in Count I, and it is further alleged in this count that as a result of the personal injuries sustained by their minor son, the parents have been required to expend great sums of money in and about curing their son of his injuries and will in the future be required to expend large sums of money in that regard, and that as a direct result thereof the plaintiffs have been damaged in their property by an intoxicated person as provided by Section 14 of Article VI of the Dram Shop Act. Count IV concludes by praying judgment in favor of plaintiffs, Edwin L. Shepherd, Sr., and Priscilla M. Shepherd, against all defendants in the sum of $20,000.

There are two questions presented on this appeal. (1) Do Counts I and II of the complaint based on a breach of a 'common law duty' and a violation of Section 12 of Article VI of the Dram Shop Act state a cause of action? (2) Does Count IV state a cause of action for damages to the property of plaintiffs, Edwin L. Shepherd, Sr., and Priscilla M. Shepherd, by an intoxicated person under Section 14 of Article VI of the Dram Shop Act?

Subsequent to the filing of the appeal in the instant case and while this court has had the case under advisement, the Supreme Court of Illinois has decisively answered the first question here raised. In Cunningham et al., v. Brown, et al., 22 Ill.2d 23, 174 N.E.2d 153, the Supreme Court held that Section 14 of Article VI of the Liquor Control Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication.

The opinion in the Cunningham case, supra, written by Justice House ably reviews the historical background of the present Dram Shop Act and its application to the civil liability of tavern keepers for damages and need not be elaborated on by this court. In view of the opinion in that case, we conclude that the trial court properly struck Counts I and II of the plaintiffs' complaint in the instant case.

In support of the trial court's order of dismissal of Count IV of the complaint, appellees argue that this count reveals on its face that the money expended for the minor's care relates solely to the minor, Edwin L. Shepherd, Jr., incurring such expenses and that recovery is not allowed by or on behalf of the intoxicated person who wrongfully causes his own injury. An examination of Count IV indicates that there are no such allegations that Edwin L. Shepherd, Jr., incurred on paid any expenses for treatment for his injuries. On the contrary, it is alleged in that count that plaintiffs, Edwin L. Shepherd, Sr., and Priscilla M. Shepherd, are the parents of Edwin L. Shepherd, Jr., a minor, of the age of nineteen years, and that as a direct result of the injuries which he received the plaintiffs have been required to expend great sums of money in and about curing the son of his injuries and will in the future be required to expend large sums of money in that regard, and that as a direct result thereof the plaintiffs have been damaged in their property by an intoxicated person. We, therefore, conclude that Count IV prays damages on behalf of the parents who are the only plaintiffs in this count.

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