dissenting:
I respectfully dissent.
The instruction that the majority has held to have been erroneously refused by the trial court is intrinsically and fundamentally faulty. The fact that the instruction is not in Illinois Pattern Jury Instructions (IPI), Civil (2d ed. 1971) is the least of its shortcomings. Whether considered as a whole or sentence by sentence, it is ungrammatical, incongruous, confusing and uninstructive.
The first sentence of plaintiffs’ instruction No. 14 appears to be a solecism, for it equates “cause” and “result.” The second sentence is one of definition embedded in the middle of the instruction, and the phrase it defines does not appear elsewhere in the instruction. Definitional instructions ordinarily used in an IPI Civil series carry no further phraseology and generally recite “When I use the phrase _in these instructions ***.” With further regard to the second sentence of the instruction, the phrase “consumed at a given dramshop” does not address the question of drinking at more than one dramshop. That phrase does not serve to answer the jury’s question, but it does serve to obscure the fact that the jury could impose liability on just one of the dramshops. The third sentence of the instruction informs the jury, “This is a question of fact for you to determine.” “This” is a pronoun that has no noun to refer to as an antecedent. Moreover, the first two sentences do not pose a question or any sort of proposition for an answer by the jury.
Upon consideration of the foregoing, it is little wonder that plaintiffs’ instruction No. 14 was refused by the trial court. I would venture the opinion that no instruction in the phraseology of plaintiffs’ instruction No. 14 will ever appear in IPI Civil, or gain acceptance as a non-IPI instruction.
Plaintiffs’ purpose in tendering their instruction No. 14 was apparently to tell the jury that more than one dramshop could “cause” a person to become intoxicated and, therefore, be liable under the Act. The majority has adopted the plaintiffs’ argument and the tendered instruction. I disagree with the felt necessity for such an instruction and with the reasoning leading to its adoption.
It was not an oversight that led the drafting committee of IPI Civil instructions to omit a definition of “causes the intoxication.” Fourteen years have elapsed since the 1971 amendment to the Liquor Control Act that deleted the “in whole or in part” language. Cases and commentary following the amendment make it plain that the intent of the legislature in imposing dramshop liability upon those who “cause” intoxication was a considered policy decision and not the result of an inadvertent choice of words. The intent of the legislature was to constrict liability. The supreme court in Nelson v. Araiza (1978), 69 Ill. 2d 534, 540-41, 372 N.E.2d 637, 639, had this to say:
“In 1971 the ‘in whole or in part’ language was eliminated. The current statute provides a right of action only against those who cause the intoxication. This, according to the appellate court decisions touching upon it, narrows the scope of liability. The defendant must have caused the intoxication and not merely have furnished a negligible amount of liquor.”
And the appellate court in Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111, in a similar vein stated:
“There had been a number of legal decisions under the prior act defining ‘in whole or in part’ strictly against a defendant with the result that proof of gift or sale of intoxicating liquor in any degree no matter how slight was sufficient. [Citations.] In some cases, however, it was recognized that the elements of the quantity of liquor consumed and the remoteness in time could support a denial of recovery. [Citations.] It seems fair to conclude that the intent of the legislature with respect to the 1971 amendment was to eliminate the possibility that dram-shop liability could be founded on any consumption of alcohol no matter how slight but to impose liability only when intoxication could be said as a matter of fact to have been caused by a dramshop.”
Also see Caruso v. Kazense (1974), 20 Ill. App. 3d 695, 313 N.E.2d 689; The Illinois Dramshop Act: Effect of the 1971 Amendment, 1974 U. Ill. L.F. 466, 472-73.
It is to be noted that the IPI Civil series of instructions relating to the trial of dramshop actions (IPI Civil 2d No. 150 et seq.) nowhere define the word “causes” or the phrase “causes the intoxication.” This is neither an omission nor an oversight. The simple reason for omitting such a definition is that the word “causes” is a simple one with a meaning understood by all. The definition ■ of the word “cause” (when used in verb form, as it is in the Act) assigned by Webster’s Third New International Dictionary is “to serve as cause or occasion of: bring into existence: make.” This meaning is a commonly understood one and needs no elaboration. If a jury is told in an instruction that “cause” is defined as “conduct that was a material and substantial factor in producing or contributing to producing the intoxication,” it will serve only to confuse and obfuscate that which they already understand. Such definition of “cause” will, furthermore, lead to a corruption of the statute and lead to a diversion from the fulfillment of the legislative purpose. While the term “material and substantial factor” may well serve a court of review in considering the weight to be accorded a jury’s finding, it certainly will be of no aid to a jury in determining whether a particular dramshop “caused” an intoxication. In this regard, it is to be noted that the Thompson case, relied upon by the majority, was not concerned with the propriety of a jury instruction.
The court in Caruso v. Kazense states: “The phrase, ‘causes the intoxication’ is not a technical legal term requiring definition. We note that IPI 150 et seq. (2d ed.) does not define the term.” (20 Ill. App. 3d 695, 697, 313 N.E.2d 689, 691.) In Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108, the court stated: “Moreover, the ordinary meaning of the word ‘causes’ as used in the statute does not exclude the possibility that two or more causes may join to result in a single intoxication.” (45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111.) In the instant case the jury was thoroughly instructed on the possibility that either or both defendant dramshops could be found liable under the Act if they had “caused” the intoxication of Berry. Plaintiffs’ instruction No. 9 set forth the dramshop statute and advised the jury that any person who causes the intoxication could be liable. Plaintiffs’ instruction No. 15 set forth the statute that imposes liability under the Act upon any owner that knowingly permits the sale of alcoholic liquors that causes an intoxication. Most pointedly, plaintiffs’ instruction No. 8, in setting out plaintiffs’ burden of proof, advised the jury that the plaintiffs had the burden of proving that “the defendants, or one of them, their agents or servants, sold or gave intoxicating liquor consumed by John Clark Berry; that the liquor thus consumed caused the intoxication of John Clark Berry.” This language was then repeated two times as the instruction continued for the two additional counts of the complaint. Three verdict forms were submitted to the jury. One, plaintiffs’ instruction No. 26, was for use in finding for the plaintiffs and against all defendants. Another, plaintiffs’ instruction No. 27, was for use in finding for plaintiffs and against “the following defendants __” The third was for use in finding for all the defendants.
In addition to the wording of the instructions, plaintiffs’ attorney repeatedly told the jury in his closing argument that both defendant dramshops could and should be found liable as having caused Berry’s intoxication. In the first phase of his final argument to the jury, plaintiffs’ attorney stated:
“Well, I think that the question of where he became intoxicated, where, which of the quantities of alcohol that he consumed on this evening in question, did he become intoxicated as a result of what he drank at the New Moon or because of what he drank, the last bit that he had over there at MD’s Tavern.
I think he got the alcoholic beverage that intoxicated him in both places.”
Again, in the final, or reply, phase of his closing argument, plaintiffs’ attorney stated:
“I am glad you have been encouraged to use your common sense because I think anybody who is using their common sense would know that not only did this occur and that a factor in the occurrence was the intoxication of this man, but that really he got intoxicated at both places. He consumed the alcohol at both places. It is like taking a glass and you fill it up with water, and another guy comes along and he fills it a little bit more full; and pretty soon it goes over the brim. Who makes it go over the brim?
They both make it go over the brim.”
In addition to the two quoted remarks, there are at least four additional instances in which plaintiffs’ attorney told the jury that both defendant dramshops caused the intoxication of Berry. In view of the instances in the instructions and the arguments in which the jury was told that both defendants could be held liable under the Act, they could not have been confused upon that issue, and there was no occasion to give plaintiffs’ instruction No. 14, as the trial court fully realized.
I conclude with the observation that the jury answered a special interrogatory by finding that John Clark Berry was intoxicated but that such intoxication was not the result of consuming alcoholic beverages at either of the defendant dramshops. Both findings are well supported by the evidence. Moreover, in reading the entire transcript, one is persuaded that the jury concluded from the evidence that plaintiffs’ injury was not brought about by the intoxicated person, Berry. Rather, it resulted from his pulling from a side street and stop sign into the path of oncoming traffic. This conclusion, too, is well within the realm of the evidence.
I would affirm.