Wessel v. Carmi Elks Home, Inc.

Mr. PRESIDING JUSTICE EBERSPACHER

dissenting:

As has the Fourth District Appellate Court in Geocaris v. Bangs, 91 Ill.App.2d 81, 243 N.E.2d 17, (written for the First District, 1968) and Walker v. Service Liquor Store, Inc. (1970), 120 Ill.App.2d 112, 255 N.E.2d 613, I would reject the holding of Coffey v. ABC Liquor Stores (1957), 13 Ill.App.2d 510, 142 N.E.2d 705, a case decided before the leading cases stating the present posture of the Illinois Law of Indemnity such as Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 186, 229 N.E.2d 767 (1967) and Miller v. DeWitt 37 Ill.2d 273, 226 N.E.2d 630 (1967).

As is said in Illinois Dramshop Briefs, 2nd Ed. (1960) by John Alan Appelman in discussing the Coffey decision, p. 221,

“The court held that dramshop operators could not bring in the wrongdoer as a third-party defendant, but rather skitters around the edges in finding a reason for its ruling. At one point, it seems to imply that the sale or gift of alcoholic liquor is a tort, and that, therefore, one tort feasor cannot sue another. It then also implies that the Dramshop Act is penal in nature, citing cases under the old Act which was penal in nature, and that under this rule the third-party plaintiffs could not be regarded as innocent parties entitled to recover. It finally concluded that the Act expresses the public policy of the state, and allowance of the claim for indemnification would violate such public policy.
The reasoning of the court appears to be unsound. The statute imposes a purely statutory liability, irrespective of fault or any other considerations. While the statute is a desirable one, it places a heavy burden upon the industry, and creates many situations where collusion may well occur between the wrongdoer attempting to escape responsibility for his acts and the one seeking recovery. In many situations, if such actions were permitted to lie, a dramshop operator could not recover against such person, by reason of actually being at fault, such as by selling to a minor, to an intoxicated person, or other situations where a loss may be foreseeable. However, he should have a right to pose this problem directly to a jury, to take into consideration the entire situation as it exists. It would help to militate against situations of fraud or collusion and would tend to promote the public policy expressed by statute in granting such causes of action in the first instance. It would also help to reduce the number of situations where settlements are made with automobile carriers for partial relief, which then encourages suits under the Dramshop Act, leading to a congestion of court calendars. This could tend to encourage the disposition of all claims in a single suit. Rather than contravening public policy, it would seem to be consistent therewith.”

It is to be especially noted that in Coffey tire Court said “indemnity # # * is allowed only to innocent parties”. Few, would today contend for the correctness of that statement, in light of the modern indemnity cases, but yet it was on the basis of that principal that the Coffey Court determined that since the Act does not grant any rights of indemnity, it would be inconsistent with the objectives of the Act to allow indemnification. Since Miller v. DeWitt, supra, one need not be an innocent party to be entitled to indemnity. The Coffey Court failed to point out, as has been done in both Geocaris and Walker, that neither does the Act preclude indemnification, and thus its precise terms do not answer the problem. In arriving at its conclusion, the Coffey Court relied on the 1905 case of Wanack v. Michels, 215 Ill. 87, 74 N.E. 84; and the majority of this Court appears to have relied on the same obsolescent language of Wanack to determine that the liquor trade should not be able “to transfer its liability by seeking indemnity based on fault”. At its best, I would treat the language which the majority of this Court has quoted from Wanacle as a naked remnant of a by gone age, particularly in view of the fact that the majority considers that Miller v. DeWitt, supra, is authority for the proposition that, “The trial court should not have dismissed the third party complaint unless it appeared from the pleadings that in no event would the dramshop operators and owners have an action over against the intoxicated person”.

Our first civil remedy statute with reference to the sale of “intoxicating liquors” was enacted in 1874. At that time it was strictly construed and regarded as highly penal in character. When, in 1934, re-enacted after the end of Prohibition, it was determined that such statute was remedial; and by the express provisions of the first section of the Act, the entire Act dealing with Liquor Control, is to be liberally construed. Since the section of the Statute that provides for the recovery for a victim, ch. 43, par. 135, is remedial, it should be given the liberal construction provided by ch. 43, par. 94, but even under a liberal construction Courts should not construe it beyond the intent of the General Assembly. (See New Amsterdam Casualty Co. v. Gerin (1958), 9 Ill.App.2d 545, 133 N.E.2d 723; Thompson v. Capasso (1959), 21 Ill.App.2d 1, 157 N.E.2d 75; Nechi v. Daley (1963), 40 Ill.App.2d 326, 188 N.E.2d 326.) An examination of the language used in par. 135 of the Act discloses nothing from which it can be reasonably inferred that the General Assembly intended that section to be penal in nature and tire most that can be concluded from that language is that it is punitive in that it imposes liability on an owner and operator without fault, and despite the numerous opinions dealing with the construction of that section, none have ever pointed out in what respect or by what language the General Assembly intended the section to be penal, other than to say that it imposed liability without fault. From the language of the section, with its numerous amendments including removal of the original exemplary damages provision, it appears that what the General Assembly is fundamentally providing for is a source from which compensation for a victim could be recovered as a practical matter. Even the majority of this Court recognizes that “Throughout the case law runs the common thread that due to lack of financial responsibility of the intoxicated person the Dram Shop Act may be the only practical remedy”. Nothing in the law of Illinois prevents a victim, where as a practical matter, the victim can recover from the intoxicated person, from doing so directly, so query, why should the law prevent, where practical, a victim from recovering indirectly from the intoxicated person? To bar such indirect recovery opens the door to a certain cooperation between the intoxicated person and his victim which may amount to collusion and fraud, with the dram shop owner and his tenant suffering for the sins of the intoxicated person, and a reward to the intoxicated person for his original indiscretion and guilt.

A common and generally accepted concept in our law is that the law searches constantly for the imposition of burden commensurate with fault, as was pointed out in Walker and Sargent, supra, and in Miller v. DeWitt, supra. Our Supreme Court in discussing liability under the Structural Work Act, the purpose of which is to afford a certain class of workers who are the victims of a violation of that Act a practical remedy, said:

“The lesser delinquent, if held accountable by the Plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about the Plaintiff’s injury.” (Italics furnished.)

That Act embraces public policy to furnish a practical remedy and to furnish a high degree of protection to those who work in high places, just as the Dram Shop Act embraces public policy to furnish a practical remedy and a high degree of protection to those who are injured by an intoxicated person.

It is unfortunate that Illinois Courts in construing our amended Act of 1934, have become confused between the 1874 Act and the 1934 Act as amended. Even our Supreme Court has said in a single sentence, that the Statute is both to be strictly and liberally construed. In Howlett v. Doglio (1949), 402 Ill. 311 at 318, 83 N.E.2d 708 it said, “Although the Dram Shop Act is penal in character and should be strictly construed, [citing decisions under the 1874 Act] the legislation is, at the same time, remedial and should be so construed as to suppress the mischief and advance the remedy. [Citing decisions under the 1934 Act.]” The same statement has been reiterated in numerous Appellate Court decisions, to the detriment of the clarity of dramshop law. Liberal construction is specifically provided by the Act itself, and it is unfortunate that there was no petition for leave to appeal from either Geocaris or Walker, but the majority opinion herein being in direct conflict with decisions of both the First and Fourth Districts may present an opportunity for clarification.

In the present case we have only the pleadings before us; from them we find the third-party plaintiffs are alleged to have sold intoxicants to third-party defendants whose intoxication was caused in whole or in part by the drinking of those intoxicants and the third-party defendants are alleged in their intoxicated condition to have driven an automobile into a house resulting in the death of a child. There is no allegation that third-party defendants were chronic alcoholics or minors to whom a sale would have been prohibited. From that factual situation, it is either concluded by the majority, that those allegedly engaged in a legal enterprise, one which has been considered legal throughout the history of this land except for approximately 15 years of Prohibition, are at least as delinquent as those who have allegedly committed a homicide, or that the standard of delinquency applied to those engaged in every other legitimate business is not applicable to those engaged in the legal sale of intoxicants without any statutory, case law or constitutional authority for the discrimination between those engaged in one legitimate business and all others.

To construe Sec. 135, which neither provides nor bars indemnification, as denying indemnification will not “suppress any mischief”, for the possibility of indemnification as a practical matter is hardly sufficient to change the conduct of owners and operators in selecting to whom they make their sales, nor will it relieve them as a practical matter from either the expense of defending themselves in the Courts or insuring themselves against liability. To allow indemnification would be a step in holding those whose tortious conduct occurs during intoxication to the same responsibility as is applied to those whose tortious conduct occurs during sobriety, against whom third-party actions are enforceable.