dissenting:
I disagree with the conclusion of the majority that the defendant, Geraldine Richter, retained sufficient control over the subject premises to be classified as an owner within the meaning of the Liquor Control Act. I would affirm the judgment of the trial court.
At the outset, I believe that a brief comment is required on the contention that the plaintiff was surprised by the motion for summary judgment. The record does not support the view, apparently concurred in by the majority, that she first learned of Geraldine Richters status as a contract seller when the motion was presented.
On February 1, 1972, the plaintiff propounded interrogatories to each of the defendants. The first three questions of these were as follows:
“1. State the name and address of each owner of the property located at 6255 South Archer Avenue, Summit, Illinois.
2. State whether you are the owner or lessee of the premises located at 6255 South Archer, Summit, Illinois.
3. If you are a lessee of said premises, state whether it is under written lease and the name and address of the lessor or lessors.”
On April 25, 1972, Hemietta Meyers, operator of the dram shop, answered the interrogatories as follows:
“1. Not applicable. However, GERALDINE RICHTER, Arlington Heights, Illinois, is the contract seller for the property located at 2100 West Belmont, Chicago, Illinois, [the location of the dram shop]
2. Not applicable. However, CLARENCE MEYERS and HENRIETTA MEYERS, his wife, are the contract purchasers of the property at 2100 West Belmont, Chicago, Illinois.
3. See Answer to Interrogatory No. 2.”
Thus the plaintiff was apprised of Mrs. Richters status approximately one month before she executed the covenant not to- sue Hemietta Meyers, which occurred on May 18, 1972, and approximately four months before the date upon which Geraldine Richter moved for summary judgment. In my opinion, therefore, this case does not involve the issue of surprise or the use of improper tactics, and such should not be allowed to obscure our discussion of whether the trial court was correct in concluding that Geraldine Richter was not an owner within the contemplation of the statute.
As the majority correctly states, our courts have held on numerous occasions that the term “owner” has no uniform meaning and must, in each instance, be construed in light of the nature and purpose of the statute involved. (See, e.g., Coombs v. People (1902), 198 Ill. 586, 64 N.E. 1056; Woodward Governor Co. v. City of Loves Park (1948), 335 Ill.App. 528, 82 N.E.2d 387; De Luxe Motor Cab Co. v. Dever (1929), 252 Ill.App. 158.) The purpose of tire Liquor Control Act has been stated as fulfillment of the “need for discipline of traffic in liquor” and provision of a “remedy for the evils and dangers which flow from such traffic.” Osinger v. Christian (1983), 43 Ill.App.2d 480, 193 N.E.2d 872.
It follows that the term “owner”, when used in the Liquor Control Act, contemplates a person who, in some manner, retains or possesses sufficient control over the uses to which his property may be put that his action, or lack thereof, will have some effect on the traffic in liquor. Only such an interpretation would be consonant with the nature and purpose of the statute. Therefore the courts of this State that have considered the matter have held that a person who lacks such a power to control is not an owner within the meaning of the statute even though he may possess some interest which would cause him to be deemed an owner for some other purpose.
Thus, in Castle v. Fogerty (1886), 19 Ill.App. 442, the court held that one possessed of a reversionary interest in premises upon which another was engaged in the sale of alcoholic beverage was not an “owner” within the meaning of the statute. After reviewing the applicable provisions of the act and its purpose, the court concluded that “it was the intention of the legislature in the passage of [the statute] to deal only with landlords and their property and those having a rentable interest in buildings and premises- that they could control at the time, and that it was not intended to include those who only have reversionary and contingent interests and who are not in any way responsible for the renting, control or disposition of the property.”
And in Robinson v. Walker (1965), 63 Ill.App.2d 204, 211 N.E.2d 488, this court ruled that the trustees of two land trusts who held legal title to property upon which two taverns were located, but had no right to exercise control over its use were not “owners”. We stated that the purpose of the Dram Shop Act would in no way be served by imposing liability upon one who holds “naked” legal title and has no right to exercise any control over the use of the property for the sale of intoxicating liquors.
Turning to the present case, the articles of agreement executed by Geraldine Richter appear to follow the format standard for such contracts. They provide, among other things, that the purchasers shall not suffer any lien upon the property which will be superior to the rights of the seller, that every contract for repair shall contain an express waiver of mechanic’s lien and be approved by the seller in advance, that the purchasers shall not assign the agreement or lease the premises without approval of the seller, that no title, legal or equitable, shall vest in the purchasers until full payment of the purchase price and that the agreement shall not be filed with the Recorder of Deeds.
The majority states that by including these restrictions upon the purchasers, Mrs. Richter retained sufficient control over the premises to be considered an “owner”. While it may be conceded that the restrictions do allow her to exercise control over some aspects of the property, they do not purport to allow her to control its day to day use by the purchasers in possession. Indeed it is manifestly apparent from their nature that their intended function is the limited one of protecting the seller’s interest until such time as the purchase price is paid in full and of preventing any action which would create a superior interest in a third party or a cloud on the title. Thus the situation in the present case is different from that involving an owner who is a lessor because the lessor typically places conditions upon the lessee’s day to day conduct upon the demised premises and, in the event that such conditions are not met, retains the remedy of avoiding the lease and recovering possession of the property.
As stated above, nothing in the installment sales contract imposes any restrictions upon the purchasers’ conduct of their day to day business upon the property except in limited areas such as repairs and the granting of leases. So long as these areas are not transgressed and the payments are made when due, the purchasers enjoy an absolute right of possession. They are free, within the terms of the agreement, to operate their tavern in any manner that they wish, including improperly, and Geraldine Richter is powerless to prevent it. Therefore the majority is mistaken when it states that to impose liability upon Geraldine Richter will accomplish the purpose of the Liquor Control Act.
In my opinion, the central inquiry in all cases of this type is whether the person sought to be held liable under the statute, regardless of how he is labeled, retained sufficient control over the dram shop premises to have prevented or curtailed the improper conduct of the persons directly responsible for its operation. In the present case Geraldine Richter did not retain such control and should not be held liable. I believe, therefore, that the summary judgment entered by the trial court should be affirmed.