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Mcclure v. Lence





Appeal by defendant from the Circuit Court of Union county; the HON.C. ROSS REYNOLDS, Judge, presiding. Heard in this court at the May term, 1951. Reversed and remanded. Opinion filed November 29, 1951. Released for publication January 5, 1952.


Plaintiffs-appellees, hereinafter referred to as plaintiffs, filed an action for damages against defendant-appellant, hereinafter called defendant, pursuant to the provisions of the civil liability section of the Dram Shop Act, par. 135, ch. 43, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 68.042]. The suit was based upon plaintiffs' claims for injury to their means of support growing out of the deaths of their respective minor children. A jury trial resulted in three separate verdicts of $5,000 as damages for each death. Judgment was entered thereon and the defendant appeals.

From the evidence it appears that on the evening of October 26, 1949, James McClure, Edgar Green, and Clarabelle Adams, the minor intestates of the respective plaintiffs were patrons of the defendant's tavern located two miles south of the city of Jonesboro, Illinois. With them were Melvin Wright and Marjorie Adams, a sister of one of the decedents, both of whom were likewise minors. Sometime between 11:00 p.m. and midnight these five young people got into a 1937 Chevrolet coupe with Melvin Wright driving. A few moments later while crossing a railroad track the automobile stalled and was struck by a Gulf, Mobile & Ohio train, resulting in the deaths of plaintiffs' intestates. Melvin Wright jumped from the car seconds before the impact and escaped injury. Marjorie Adams was injured and removed to the hospital where the ignition key to the Chevrolet was found in her coat pocket. Plaintiffs allege that Melvin Wright and Marjorie Adams were intoxicated as a result of consuming alcoholic liquor at defendant's tavern and thus bring the factual situation within the purview of the civil liability provisions of the Illinois Dram Shop Act, claiming that the accident resulted from Melvin Wright's driving or from Marjorie Adams' withdrawing the ignition key.

From the pleadings it appears that prior to filing the instant suit, plaintiffs Russell McClure, Gladys Lynn, and Mabel Claxton, as administrators of their respective decedents' estates, executed identical releases to the railroad. Because of the significance such instruments assume in the determination of the issues raised on this appeal, we deem it advisable to quote one such release in full:

"Final Settlement and Release"

"For the Sole Consideration of Five Hundred and no/100 Dollars to me (us) in hand paid, the receipt of which is hereby acknowledged, I (we) do hereby release, acquit, and forever discharge Gulf, Mobile and Ohio Railroad Company, its lessors, lessees, licensors, licensees, and any and all lines or companies owned, operated or controlled by or allied with it, their agents, servants and employes, and each of them, together with their and each of their, successors and assigns and all others, from all claims, demands, suits, actions, causes of action, and damages whatsoever, at law or in equity, which I (we) now, or may, can or might have against them, or any of them, in consequence, directly or indirectly of any matter or thing done or omitted or suffered to be done by any of them prior to and including the date hereof, and more especially on account of the death of James Edward McClure, who was fatally injured on or about October 26, 1949, near Jonesboro, in Union County, Illinois, when riding in an automobile which was struck on a grade crossing by a train of the Gulf, Mobile and Ohio Railroad.

"This settlement being in full and complete settlement and release of any and all claims I now have, or may hereafter have on account of said accident, and is in full settlement of all other claims to and including the date hereof.

"And for said consideration, it is covenanted by the undersigned that no suit of any kind or character shall be instituted for a recovery of any sort against said Railroad Company or any of the parties herein mentioned, each and all of whom expressly deny all liability to the undersigned, on account of the occurrence hereinabove especially mentioned, or on account of any other matter or thing done or omitted or suffered to be done by any of said parties prior to and including the date hereof; and this release and covenant shall be forever binding upon the undersigned, as well as upon the heirs, administrators, executors, successors and assigns of the undersigned.

"It is acknowledged by the undersigned that the said sum of money was and is the sole consideration for this release and covenant and that no promise of any kind, and no representation of fact or opinion has been made by any of the above named parties, or anyone on their behalf, to induce this settlement, and that this instrument expresses all the agreements and understandings between the undersigned and the parties above mentioned; and this settlement is in all respects complete and final.

"Signed and Sealed this, the 3rd day of November, 1949, at Jonesboro, Illinois.

/s/ Russell McClure, (Seal) As Administrator of the Estate of James Edward McClure, Deceased. (Seal)

"Executed in the presence of: /s/ Bertha McClure /s/ John L. Stewart."

Defendant, in his answer, raised a special defense against the action of each plaintiff based upon the execution of the three releases to the railroad. He contended that said releases were given for the same deaths as were now being sued for and represented full compensation for loss of support in favor of all next of kin, including plaintiffs; that the damages resulting from said deaths were inseparable and that therefore the settlements with the Gulf, Mobile and Ohio Railroad Company by the administrators were settlements of all claims of the respective next of kin of the decedents. On a motion to strike the said special defenses made before the commencement of the trial of the cause the plaintiffs argued that the two causes of action were based on two entirely different and separate statutes of the State of Illinois; that the Injuries Act and the Dram Shop Act created separate and distinct actions with different parties plaintiff and a different measure of damages; that therefore the releases given to the railroad under the Injuries Act could not operate to bar the claims for injury to plaintiffs' means of support under the Dram Shop Act. The trial judge sustained the plaintiffs in their contentions and the special defenses were stricken. The cause thereupon proceeded to trial and resulted in the jury verdicts and judgments for the plaintiffs as aforesaid. The jury further determined in answer to special interrogatories submitted to them that both Melvin Wright and Marjorie Adams were intoxicated and that the latter withdrew the keys from the ignition but that such withdrawal would not stop the running of the motor. Defendant's motions for a directed verdict at the conclusion of the plaintiffs' evidence and upon all the evidence were denied as were motions for a judgment notwithstanding the verdict and for a new trial.

The appellant assigns error on the court's ruling striking his special defenses which pleaded the releases referred to. A reading of the instrument shows that it is a full technical release under seal. The legal proposition is thus presented on appeal as to the effect of a release given under the Injuries Act by an administrator upon an action under the Dram Shop Act by the next of kin for injury to means of support sustained by the death. It poses a different problem from that presented in Hyba v. C.A. Horneman, Inc., 302 Ill. App. 143, 23 N.E.2d 564, in which a covenant not to sue was given under similar circumstances and which the court held would not bar the subsequent Dram Shop action. Nor can the answer be quickly gathered from Manthei v. Heimerdinger, 332 Ill. App. 335, 75 N.E.2d 132, in which the court concluded ...

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