dissenting:
I respectfully dissent from the opinion of the majority and-would affirm the decision of the trial court.
To recover under the Dramshop Act, all that is required is a showing that the defendant dramshop keeper sold or gave alcoholic beverages which contributed to the intoxication, and that the injury was caused by such intoxication. (Tresch v. Nielsen (1965), 57 Ill. App. 2d 469, 472, 207 N.E.2d 109.) In this case, defendant, through his agent, the bartender, unquestionably served alcoholic beverages to the assailants. Whether they were or became intoxicated was a question for the jury. Generally, proof of intoxication in a dramshop action requires evidence which establishes that the tortfeasor was in fact intoxicated, and it is not sufficient that the evidence prove only that the alleged intoxicant consumed alcohol; but evidence that such person consumed alcohol, together with evidence of unusual behavior, or opinion evidence that he was drunk, would entitle a jury to conclude that the person was intoxicated. (Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, 244, 311 N.E.2d 313.) Such a case was made out by the plaintiffs.
Plaintiff Murray testified that she watched television for a period of time after the men entered the lounge without being disturbed. It was only after the assailants had consumed several drinks that they began to harass her. Her testimony is véry clear that she considered them to be drunk when they committed the assault. This, together with the testimony of both plaintiffs concerning the unusual and despicable behavior of the men involved, would warrant the conclusion that the offenders were intoxicated, that defendant’s selling of alcoholic beverages contributed to the intoxication, and that the injuries to plaintiffs were caused by their intoxication.
Defendant contends that the trial court erred in admitting certain testimony concerning the bartender which resulted in irreparable prejudice and denied defendant a fair trial. The majority believes the police officer’s testimony about the alleged bad character of the bartender implied negligence on the part of defendant in hiring him. I submit that at most this was harmless error because the Dramshop Act imposes liability without the necessity of proving fault. (Tresch v. Nielsen (1965), 57 Ill. App. 2d 469, 472, 207 N.E.2d 109.) Therefore, even if defendant had exercised the highest degree of care in employing the bartender, his liability for the wrongs arising out of the intemperate use of alcohol would be unaffected.
The majority also concludes that once the assailants took charge, further drinks were served under duress. Defendant did not raise duress as an affirmative defense and should not be heard to do so on appeal. In any event, the jury reasonably could have determined from the evidence that the assailants were intoxicated before they took charge and that any subsequent duress was not the proximate cause of plaintiffs’ injuries. This is consistent -with the testimony of plaintiff Murray concerning the bartender’s statement that he was not supposed to serve the men but that they had visited the lounge before and were “okay.” The defense of duress is also inconsistent with plaintiff’s testimony that the bartender refused to permit her to call the police after the men had fled.
The majority cites no support for the proposition that plaintiff Tomecek had no cause of action because he failed to exercise ordinary prudence in sensing the danger. It is well established that the doctrine of contributory negligence is not applicable to a dramshop case (Overocker v. Retoff (1968), 93 Ill. App. 2d 11, 21, 234 N.E.2d 820; Lester v. Bugni (1942), 316 Ill. App. 19, 28, 44 N.E.2d 68) and does not constitute a defense (Quatrano v. Marrocco (1965), 61 Ill. App. 2d 1, 14, 208 N.E.2d 632). Cases holding that a person who is “in pari delicto” with a tavern keeper and either causes or contributes to cause the intoxication of another cannot recover in a dramshop action are not applicable where the injured person does not contribute to the intoxication of another, drink with him or provoke an attack upon himself. (Quatrano v. Marrocco (1965), 61 Ill. App. 2d 1, 15, 208 N.E.2d 632.) I find no evidence that plaintiff Tomecek voluntarily contributed to the intoxication of the assailants, that he drank with them or that he provoked the subsequent attack by entering the lounge.
Plaintiffs proved the essential elements of their cause of action by a preponderance of the evidence. The jury accordingly found liability under the Dramshop Act. We should not, on appeal, substitute our opinion for the decision of the jury. I would affirm the judgment.