Thompson v. Wogan

• Decision Date: 14 April 1941
• Docket Number: Gen. No. 41397.
• Citation: 33 N.E.2d 151,309 Ill.App. 413
• Parties: THOMPSON ET AL. v. WOGAN ET AL.
• Court: United States Appellate Court of Illinois

309 Ill.App. 413

33 N.E.2d 151

THOMPSON ET AL.

v.WOGAN ET AL.

Gen. No. 41397.

Appellate Court of Illinois, First District, First Division.

March 31, 1941.

Rehearing Denied April 14, 1941.

Appeal from Circuit Court, Cook County; John T. Cummings, Judge.

Action under the Dram Shop Act, Smith-Hurd Stats. c. 43, § 135, by Jess Anne Thompson, a minor, by Cordelia Thompson, her mother and next friend, William H. Thompson, Jr., a minor, by Cordelia Thompson, his mother and next friend, and Cordelia Thompson, against William Wogan, individually and doing business as The Carioca Club, and the Chicago Title & Trust Company, a corporation. From a judgment for plaintiffs, defendant Chicago Title & Trust Company appeals.

Affirmed. Lord, Bissell & Kadyk, Gordon R. Close, and Russell Greenacre, all of Chicago, for appellant.

McGinnis & Mulholland and Gariepy & Gariepy, all of Chicago, for appellees.

MATCHETT, Justice.

This appeal brings before us for review a judgment of $2,000 entered in favor of Cordelia Thompson, Jess Anne Thompson and William H. Thompson, Jr., against William Wogan, individually and doing business as the Carioca Club, and the Chicago Title & Trust Company. The action of plaintiffs was based on § 14, par. 135 of the Dram Shop Act. Smith-Hurd Anno. Stats. ch. 43, p. 40.

Cordelia Thompson is the wife, Jess Anne and William the minor children of William H. Thompson. Wogan is the keeper of a tavern known as the Carioca Club at 6426-28 S. Ashland avenue in Chicago. The Chicago Title & Trust Company is the owner lessor of the premises on which the tavern is conducted.

There is practically no dispute as to material facts. Plaintiffs' claims are for injury to their means of support. Their action is based on the statute solely. On the night of June 13, 1936, and continuing into the morning of June 14, Thompson, Sr., visited the tavern and drank alcoholic liquor purchased there. As a result he became intoxicated. While in this condition his conduct provoked Wogan, who struck him knocking him down and fracturing his jaw. Customers intervened, picked Thompson up and placed him on a chair. There was no evidence that Wogan was intoxicated when he struck Thompson or that any person involved in the assault other than Thompson was intoxicated. The injuries sustained were severe. In this action Thompson recovered a judgment against Wogan on account of the assault for $300, from which Wogan has not appealed. There is no contention that the amount of the judgment in favor of Mrs. Thompson and the children is excessive or that errors other than those hereafter mentioned occurred on the trial.

By motion for an instructed verdict at the close of all the evidence, and by motion for judgment notwithstanding the verdict and for a new trial after the verdict was returned, defendants have preserved for review their contention that the evidence is insufficient to sustain a cause of action against them under the statute because it fails to show that the intoxication of Thompson or other persons was the proximate cause of the damage or injury for which the plaintiffs sue. At any rate, it is contended the verdict of the jury is on this issue manifestly against the weight of the evidence and a new trial should have been granted for that reason.

Section 14 of the present Dram Shop Act is identical with § 9 of the Dram Shop act of 1874, R.S.1874, p. 438, except that where the words “alcoholic liquor” or “alcoholic liquors” occur in the present act the words “intoxicating liquor” were used in the former act. The section 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 alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages; * * *.”

Manifestly, it was the intention of the Legislature to create liability in a class of cases in which there was no liability at common law. Hyba v. C. A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564. The first section of the Liquor Control Act, of which this section is a part, provides that the act shall be construed liberally in order to effectuate the ends declared. This is not in any sense a common-law negligence action. In Ruling Case Law, 15 R.C.L. § 206, pp. 435, 436, it is stated that whether damages remotely as well as proximately due to intoxication may be recovered usually depends upon the phraseology of the statute, and where an action is brought for damages for the affirmative act of an intoxicated person the courts are practically unanimous in holding it is unnecessary to show the intoxication was the proximate cause of the injury, but where the action is based on the clause “in consequence of the intoxication,” or its equivalent, it has usually been held...