dissenting:
Traditionally, Illinois courts have given a broad construction to the phrase “means of support” as used in the Dramshop Act. As early as 1874 our supreme court held, in accordance with the Ohio Supreme Court in Schneider v. Hosier (1871), 21 Ohio St. R. 98, that “means of support” in a general sense “embraces all those resources from which the necessaries and comforts of life are or may be supplied, such as lands, goods, salaries, wages or other sources of income. In a limited sense, it signifies any resource from which the wants of life may be supplied.” (Meidel v. Anthis, 71 Ill. 241, 246, overruled on other grounds in Lowry v. Coster, 91 Illl. 182,185-86.) Of course, this does not signify that “means of support” is to be equated with “pecuniary injuries,” the more inclusive measure of damage employed in wrongful death cases. (Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708; Robertson v. White, 11 Ill. App. 2d 177, 136 N.E.2d 550; McClure v. Lence, 345 Ill. App. 158, 102 N.E.2d 546.) However, in Illinois any diminution of actual support constitutes injury within the Dramshop Act; that is, whatever lessens or impairs the ability to supply the necessities and suitable comforts of life lessens or impairs the family’s means of support.
By granting summary judgment in defendants’ favor, the trial court found, in effect, that as a matter of law, Karen Stevens was not contributing to the plaintiffs’ support. It is axiomatic that summary judgment should only be granted where from the pleadings, affidavits and exhibits in the case, no genuine issue of material facts exists for the trier of fact. Plaintiff need not prove his case at the pleadings stage. He need only present some factual basis that would arguably entitle him to judgment under the applicable law. I believe a state of facts could exist under the pleadings, affidavits and exhibits in this case wherein a jury could reasonably find that Karen Stevens’ death impaired Robert Stevens, Sr.’s ability to provide for his sons. To the extent that his ability to support Robert, Jr., and Alan was depleted by sums necessary to provide substitute babysitting, plaintiff has been injured in his “means of support.” Although it appears from plaintiff Robert Stevens, Sr.’s affidavit in this case that plaintiff and his two sens assumed Karen’s household chores, nowhere is there any indication that a similar arrangement occurred with regard to the babysitting services. As a child matures, he or she takes on added responsibilities, and when those services become so vital to the family’s support that, if lost, a hired replacement is necessary, then I think an injury to “means of support” has occurred.
Appellees rely on a Minnesota case, Bundy v. City of Fridley (1963), 265 Minn: 549,122 N.W.2d 585, for the proposition that a youngster who performs the kind of service at issue in this case does not provide a means of support for his parents. This case is inapposite for several reasons. We note initially that the published opinion in Bundy is unclear as to the degree of “assistance” rendered by the deceased 10-year-old; whereas, in the instant case Karen Stevens was solely responsible for the services which were performed by her without adult supervision. In addition, the Bundy court expressly stated that plaintiffs did not contend that their deceased contributed financially to the support of the family. On the contrary, counts X, XI and XIV of the complaint in this case expressly allege that Karen Stevens contributed financially to the support of her family. Finally, unlike Illinois, case law construction of the Minnesota statute requires a showing of post-injury dependence as a condition to recovery for injury to means of support.
At one point in its opinion the majority characterized the activity in question as “a child who lends a helping hand at home.” I agree that plaintiff would be hard-pressed to bring that kind of assistance within the definition of “means of support”; however, "at this stage in the case, he should not be precluded from showing that Karen’s contributions went beyond lending a helping hand at home to providing a valuable and essential service of an occupational nature and for which a ready market exists. A comparison of plaintiff’s previous income tax returns demonstrates the monetary value of Karen’s services. In my opinion, to deny appellant an opportunity for recovery merely because Karen Stevens did not have cash in hand to contribute to the support of her family is nothing more than elevating form over substance. By assuming all babysitting duties for her family, Karen increased the amount of money available for them to possess the necessities and comforts of life. I fail to understand how this could lead to a double recovery as the majority reasons.
Finally, while statutes which are penal in character should ordinarily be strictly construed, it has frequently been held that the Dramshop Act in question here is remedial in character and thus should be construed to suppress the “mischief involved and advance the remedy therein provided.” (Lester v. Bugni, 316 Ill. App. 19, 29, 44 N.E.2d 68.) For these reasons, I would reverse the trial court’s entry of summary judgment in favor of the defendants on the counts in question.