Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
The plaintiffs-appellees, Ione Cross, and her three minor children, by Ione Cross, their next friend, all citizens and residents of Kentucky, brought this action against Phil Ryan, a citizen and resident of Illinois, to recover damages for loss of their means of support, as provided under the so-called Dram Shop Act of Illinois (Ch. 43, Sec. 135, Illinois Revised Stats. 1939). So much of the Act as is applicable reads as follows: "Actions for damages caused by intoxication. § 14. Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person."
Plaintiffs are the widow and minor children of one George Cross, who was killed by one George Stout in a fight on the night of April 9 and 10, 1938. The amended complaint is in twelve counts. There are three causes of action asserted in behalf of each of the four plaintiffs. Count 1, 4, 7, and 10 on behalf of each of the plaintiffs separately allege that the defendant, Phil Ryan, as proprietor of a tavern, sold or gave intoxicating liquor to George Cross, the husband and father of the plaintiffs, and thereby Cross became intoxicated, and as a result of his intoxication he assaulted and abused one George Stout, who in turn, by reason of the drunken assault made upon him by Cross, assaulted and beat Cross, who by reason of his intoxicated condition, was unable to defend himself, and as a result of the injuries inflicted by Stout upon Cross, the latter died.
Counts 3, 6, 9, and 12 on behalf of each of the plaintiffs separately allege that the defendant, Phil Ryan, as the proprietor of a tavern, sold or gave intoxicating liquor to Cross and Stout, and as a result, they both got drunk and became involved in a drunken brawl, wherein Stout injured Cross, from which injuries Cross died.
Counts 2, 5, 8, and 11 on behalf of each of the plaintiffs separately allege that the defendant, Phil Ryan, as the proprietor of a tavern, sold intoxicating liquor to George Stout, who, as a result thereof became intoxicated, and as a result of the intoxication, Stout assaulted and injured Cross, who died from the injuries.
The defendant filed a motion to dismiss the amended complaint and each count thereof. The motion was overruled. The defendant answered, and to this answer, a reply was filed by the plaintiffs, and upon the issue thus formed a trial before a jury was had, and resulted in a verdict for the plaintiffs. The defendant filed a motion for judgment, notwithstanding the verdict, and for a new trial in the alternative. The motion was overruled, judgment entered on the verdict, and this appeal followed
The first point argued by the defendant-appellant is that this Court has no jurisdiction because the suit is penal in its nature and is not a suit of a civil nature, within the meaning of 28 U.S.C.A. § 41, conferring original jurisdiction upon the District Courts of all suits of a civil nature.
Is this a suit of a civil nature? We think it is. We have found no case in Illinois directly in point. In two case where the court was considering the statute of limitations as applied to the section in question and a similar section under a prior statute, the Illinois Court of Appeals had held that the two-year statute of limitations applicable to actions for the recovery of a penalty did not apply. O'Leary v. Frisbey, 17 Ill.App. 553; Desiron v. Peloza, 308 Ill.App. 582, 32 N.E.2d 316.
However, the United States Supreme Court has decided what is meant by suits of a civil nature within the meaning of this statute. Mr. Justice Stone, speaking for the Court in Milwaukee County v. White Co., 296 U.S. 268-270, 56 S. Ct. 229, 231, 80 L. Ed. 220, defined what is meant by the provision of the statute conferring original jurisdiction upon the District Courts, in these words:
"By section 24(1) of the Judicial Code, 28 U.S.C. § 41(1), 28 U.S.C.A. § 41 (1), District Courts are given original jurisdiction 'of all suits of a civil nature, at common law or in equity,' where there is the requisite diversity of citizenship and the amount in controversy exceeds $3,000. In this grant of jurisdiction of causes arising under state as well as federal law the phrase 'suits of a civil nature' is used in contradistinction to 'crimes and offenses,' as to which the jurisdiction of the District Courts is restricted by section 24(2) * * * to offenses against the United States. Thus, suits of civil nature within the meaning of the section are those which do not involve criminal prosecution or punishment, and which are of a character traditionally cognizable by courts of common law or of equity."
In the case at bar, there is nothing of a criminal nature about the suit. The State has no interest in the recovery or the proceeds thereof. The fact that the recovery of damages under this Section may help the State in its policy to regulate the sale of intoxicating liquor, does not make a suit to recover the damages a suit in its nature other than a civil suit. Whether it is a suit of a civil nature is not to be determined by whether the statute is to be considered as penal or remedial for the purpose of applying the rule of strict construction. The test is whether the action brought to recover under the cause of action given by the statute is essentially a suit to vindicate a private right as distinguished from punishment in a criminal action. Gruetter v. Cumberland Telephone & Telegraph Co., CC., 181 F. 248-251.
In the leading case of Huntington v. Attrill, 146 U.S. 657-667-676, 13 S. Ct. 224, 227, 36 L. Ed. 1123, the Supreme Court points out the distinction between the penal and civil ...