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Childers v. Modglin

OPINION FILED APRIL 30, 1954.

PAULINE CHILDERS ET AL., PLAINTIFFS-APPELLANTS,

v.

BESS MODGLIN ET AL., DEFENDANTS-APPELLEES.



Appeal by plaintiffs from the Circuit Court of Jackson county; the Hon. HAROLD L. ZIMMERMAN, Judge, presiding. Heard in this court at the February term, 1954. Reversed and remanded. Opinion filed April 30, 1954. Released for publication June 3, 1954.

MR. PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

The plaintiffs brought this suit under the Dramshop Act, they being the wife and ten children of Floyd Childers who is alleged to have been permanently injured by an intoxicated person. The latter's intoxication is alleged to have been caused by liquor obtained in the business establishments of the several defendants.

The theory of the complaint was that the plaintiffs were entitled to recover the full amount of their respective damages for loss of support, up to a maximum of $15,000 for each plaintiff. The defendants moved that the complaint be dismissed or, in the alternative, amended to apply the limit of $15,000 to the aggregate recovery for all plaintiffs. The plaintiffs refused to amend, elected to stand by their complaint, and judgment was entered for defendants.

On this appeal, no question of procedure is raised, the only point argued by either side is the proper construction of paragraph 135, chapter 43, Ill. Rev. St. [Jones Ill. Stats. Ann. 68.042], which, so far as pertinent, is as follows:

"Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by an 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 . . . recovery under this Act for injury to the person or to the property of any person or for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 . . ."

In support of their position, plaintiffs emphasize that the statute gives a right of action to every person injured in his means of support, in his own name, and that "every" is defined by Webster as "Each (one), without exception, of a group." Also, plaintiffs give examples of the difficulty with defendants' position, such as the case of a divorced man with two families dependent upon him: if one family first secures the limit suggested by the defense, the other would be wholly barred. Plaintiffs also cite precedents under the statute prior to the amendment, which are hereafter mentioned.

Defendants place their emphasis on the wording of the amendment of 1949 which added the limitation provision, and removed the former allowance of exemplary damages. They divide the sentence into two parts and conclude that injury to person or property may permit recovery of the maximum by each plaintiff, but that the words "for loss of means of support resulting from the death or injury of any person" places a limit on the aggregate recovery for any one death or injury, regardless of the number of plaintiffs.

Authorities are cited that the statute should be strictly construed, and therefore has been held to have no extraterritorial effect, not to permit double recovery under this and the Injuries Act, for the same transaction.

The limitation added by amendment in 1949 has not previously been construed by a court of review in this State. However, it is a matter of common knowledge that it has caused widespread discussion, and both of the conflicting views herein expressed have found support in our bench and bar. It can hardly be said that either view is so clearly correct that the other merits no consideration.

The amendment reads in part "recovery . . . for loss of means of support resulting from the death or injury of any person shall not exceed $15,000." (Words "as aforesaid" omitted temporarily.) It does not say "recovery by each person" is so limited. Hence, defendants present the reasonable argument that the total recovery by all persons for this type of injury shall not aggregate more than the limit.

On the other hand, the wording may be merely a description of one of the three types of injury for which recovery is allowed. In Howlett v. Doglio, 402 Ill. 311, the court held that this statute does not authorize recovery for every type of injury, but only for injuries "in person, or property or means of support." This opinion was released in January 1949, and thereby decided that the original Act created three, and only three, distinct types of recovery.

During the ensuing session, the legislature added the provision that "recovery under this Act . . . as aforesaid, shall not exceed . . ." etc. The emphasis is added, because the words "as aforesaid" tend to negative any intent to alter (except as to amount) the three enumerated types of right of action given to "Every husband, wife, child," etc. The words may be regarded as a short-cut method of applying the new limit to the right of every person previously specified, without the necessity of repetition, and of applying it in the same manner to each of the three kinds of rights, which are repeated.

It seems clear the amendment leaves each and every plaintiff a separate right to recover up to $15,000 for his own personal injury or property damage. To infer that, for loss of support, the various claimants, whether they sue separately or together, are now to be treated as a class or group, with one limit on their total aggregate recovery, would mean a far more radical change in the general purpose and effect of the Act than a mere limit on the amount of each person's recovery, and would present serious problems.

In some cases the apparent right of action would be wholly nullified by such construction. As in plaintiffs' example of two families, recovery by one might abolish the right of the other, without notice, with no right of intervention provided, nor any other means of participation. The previous concept of a right of action in every person injured in his means of support would be distorted into the ...


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