concurring:
I concur with the view expressed by the majority. Liability under the Dramshop Act is not premised upon fault of negligence. (Graham v. U.S. Grant Post No. 2665, V.F.W., (1969), 43 Ill. 2d 1, 1; Cunningham v. Brown (1961), 22 IU.2d 23, 26.) Prior to the Act, the dramshop owner or operator suffered no liability resulting from the mere sale of intoxicating liquor to an ordinary person. The Act was the result of the temperance movement and its demand that those who profit from the sale of intoxicating liquor should bear the burden of the evils or damages it causes. (Cunningham v. Brown (1961), 22 Ill.2d 23, 29; Voelker, Parties to Dram Shop Actions, 1958 U. Ill. L.F. 207, 214.) As a result, the Act imposed strict liability upon those engaged in the liquor traffic.
In view of the legislative purpose of the Act, it would be anomalous to weigh the dramshop liability with that of the intoxicated person for purposes of indemnity in the sense of passive versus active negligence or upon degrees of fault. Since the legislature has imposed strict liability for causing intoxication where the intoxicated person subsequently injures another, the causing of intoxication should not be viewed as a mere passive act or one of lesser fault than the act of the intoxicated person.
Presumably, the theory of such strict liability is that the effects of intoxication upon a person are sufficiently severe to warrant a drastic remedy. Under this legislative rationale, we should not permit the ultimate responsibility for the sale or gift of intoxicating liquor to be minimized qualitatively by the conduct of the intoxicated person.
I do not disagree with the general philosophy that indemnity should be available to place the ultimate liability upon the one who is primarily responsible for a wrong. Indemnity should not be employed, however, where it would result in frustration of the expressed public policy of this State. I cannot but conclude that the Dram Shop Act is a legislative expression that a part of the cost of doing business in the liquor trade is the exposure to liability xmder the Act. To permit this cost to be passed on to another, who is not in the trade or liable xmder the Act, is contrary to its intended purpose. It is no answer to suggest that, in any event, the ultimate responsibility is shifted by the dramshop owner to his insurance carrier.
Further, it seems inappropriate to characterize the type of liability imposed by the Act as the resxxlt of either active or passive negligence. Negligence is not involved and the strict liability of those engaged in liquor traffic should end with the Dram Shop Act.