Appeal from the Superior Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Reversed and remanded.
JUDGE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 4, 1957.
This is an action brought under the Dramshop Act (Ill. Rev. Stats. 1955, chap. 43, par. 135) by the plaintiff, Vernon Ness, against the named defendants, all of whom were either operators or owners of the real estate of certain taverns and drinking places where, it is alleged, on May 11, 1954 intoxicating liquor was served to one Allen W. Roberts, Jr., and, as a result of the intoxication caused by such service, Allen W. Roberts, Jr. operated his automobile, in which plaintiff was riding, in a manner which caused the plaintiff's injuries.
A discovery deposition was taken, either by notice or by agreement, at which the plaintiff was made available to the attorneys for the various defendants and he was interrogated by them. By that deposition it was established that the plaintiff was a staff sergeant in the United States Army and that Allen W. Roberts, Jr. was a master sergeant in the United States Army; that they had known each other for about two weeks, and upon one other occasion the plaintiff had been in the automobile belonging to Allen W. Roberts, Jr. Upon the day in question, May 11, 1954, the two sergeants, together with a private by the name of Hall, left the post between 11 o'clock and noon. Private Hall was under orders and was leaving from the Midway Airport later that afternoon, and the two sergeants had tickets to a ball game which they contemplated using.
The testimony in the deposition of the plaintiff also showed that the three first stopped at Bilbob Inn at Highwood. They had something to drink there. Then the three of them went to the Hideout and had something to drink there. They then went to the Gay Dragon, where Hall, the private, suggested that they stop. Again they had something to drink. From the Gay Dragon they went to the Dream Bar and at the Dream Bar they had something to drink, and again, at Caffarello's, they had something to drink, and, as Caffarello's was close to the Midway Airport, Private Hall told them good-by. It was night by this time. The cars had lights on.
The two sergeants started back in a northerly direction Allen W. Roberts, Jr. driving the car which he owned and the plaintiff accompanying him, and then Allen W. Roberts, Jr. lost control of the car, drove it into an abutment and the plaintiff was seriously injured.
It was also developed by the deposition that the plaintiff never bought any drinks; that he was broke, told both Private Hall and Sergeant Roberts that he was broke, and that he drank drink for drink and round for round with them wherever they went.
It developed that during the taking of the deposition the attorney for one of the defendants asked the plaintiff the following question: "When was the last time you were drunk before?" The plaintiff's attorney objected and directed the plaintiff not to answer. The deposition hearing developed into arguments between counsel. Plaintiff's attorney was willing that the question be certified. One of the defendants' attorneys then said that he was willing to suspend the deposition at that moment, until they had a ruling by the court. Plaintiff's attorney maintained throughout the altercation that they were ready to answer questions if they were pertinent to the inquiry. Thereupon all of the defendants' attorneys joined in the objections to the conduct of the plaintiff in refusing to answer the question and left the deposition hearing. The deposition was never submitted to the deponent for examination, nor was the submission waived; it was not signed by the deponent; it was not certified to by the officer taking the examination all in accordance with the provisions of Supreme Court Rule 19-6, sub-pars. 4 and 5 (Ill. Rev. Stats. 1955, chap. 110, par. 101.19-6).
At the time of filing the complaint a jury was demanded by the plaintiff. On October 22, 1956, after the taking of the deposition last above referred to, defendants filed a notice of motion for a summary judgment, and to support the motion for a summary judgment the defendants filed an affidavit of Louis Dennen, who was the attorney for one of the defendants who attended the deposition hearing, in which he outlined the nature of the suit, the taking of the deposition, in general the drinking of the parties as testified to by the plaintiff in his deposition, and alleged, among other things in paragraph 5, "that at no time did the plaintiff make any objection to the drinking of the parties but actively participated in said drinking of intoxicating liquors," and quoted page 29 of the transcript as authority for that statement. The transcript was attached to the motion. The question propounded on page 29 of the transcript is as follows:
"Did you at any time, from the time that you left the airport until you were involved in this accident, have occasion to talk to him about his driving?" Answer: "I might have. You're pretty high when you " Question: "The question is, Did you? Do you remember whether you did, or not?" Answer: "I don't remember." Thereafter the plaintiff by his attorney moved to strike the affidavit of Louis Dennen, citing that the affidavit did not purport to be on the personal knowledge of the affiant, contrary to Rule 15 of the Supreme Court; secondly, that no copy of any deposition for discovery referred to in said affidavit had been served on the plaintiff or his attorney, contrary to Supreme Court Rule 5 and Circuit Court Rule 9 1/2, and, that the discovery deposition could not be used as a basis for a motion for a summary judgment under Rule 19-10 of the Supreme Court.
The plaintiff through his attorney had also filed a counteraffidavit in opposition to the motion of the defendants for summary judgment. In that counteraffidavit the plaintiff alleged certain insufficiencies in the taking of the deposition which was attached to the motion for summary judgment, pointing out in paragraph 7 that the plaintiff was not interrogated by his own counsel and there was no opportunity to clarify any answers that may have been given by him in the deposition, and alleging in paragraph 9 that if the plaintiff had been asked certain questions, plaintiff would have testified that at various times during the day in question plaintiff suggested to Allen W. Roberts, Jr. that he modify or cease imbibing intoxicating liquors, but was advised that it was not the plaintiff's business; that the plaintiff repeatedly requested of Allen W. Roberts, Jr. that they proceed with the original purpose of their being together to go to the baseball game after leaving Private Hall at the airport, and that the plaintiff was without funds for transportation back to Fort Sheridan and that that mitigated against his freedom of action in leaving the vehicle owned and operated by Allen W. Roberts, Jr. Upon the consideration of the matter by the court on November 5, 1956, the motion of the plaintiff to strike the affidavit of Louis Dennen was overruled and leave was granted to the plaintiff to file his counteraffidavit, and upon consideration of the counteraffidavit and the affidavit in support of the motion for a summary judgment, such a judgment was entered in favor of the defendants.
It has been repeatedly held that in order to recover under section 14 of the Dramshop Act (Ill. Rev. Stats. 1955, chap. 43, par. 135) for injuries, the plaintiff must be innocent. The rule is generally stated that the plaintiff who participates in bringing about the intoxication of he who causes the injury, cannot recover. The facts in all the cases differ. In the early case of Reget v. Bell, 77 Ill. 593, it was held that a wife could not recover because she did not break the jug of whiskey which her husband brought home and put underneath the bed. In Forsberg v. Around Town Club, Inc., 316 Ill. App. 661, a drink had been purchased by the plaintiff. In Douglas v. Athens Market Corp., 320 Ill. App. 40, all of them had bought drinks for each other. In Swan v. Dilonardo, 5 Ill. App.2d 233, plaintiff had purchased two drinks. In Hays v. Waite, 36 Ill. App. 397, the plaintiff bought a round of drinks and in addition gave the party who caused the injury a drink out of a bottle of whiskey. In Kreps v. D'Agostine, 329 Ill. App. 190 (abst.), the plaintiff furnished his companion with liquor which contributed to his intoxication and it was held that the complaint did not state a good cause of action. And in Adkins v. Williams, 330 Ill. App. 427 (abst.), the court discussed the fact that, not being a common-law action, the doctrine of contributory negligence was not applicable, but said that the plaintiff in order to recover "must be free from complicity in procuring the intoxication."
There is, however, only one case in Illinois which has held that complicity has resulted from merely accompanying and drinking with the person who committed the injury. James v. Wicker, 309 Ill. App. 397. That was a case involving two young men in Chicago who took two young ladies, who were known as masseuses, out to a west side tavern and they drank together all evening, and when they left, one of the men drove the car into an iron post at a street intersection and injured one of the women and she brought suit against the tavern keeper where they had been drinking. The court very carefully analyzed all the Illinois cases and some of the Michigan cases. Nearly all of them say that a plaintiff who participates in procuring the intoxication of the party who commits the injury cannot recover, and in that case the court held that the plaintiff, although she did not purchase any of the liquor, was a willing party, not free from complicity, but on the contrary was a participant in what was done in that regard at the tavern and not an innocent person, and that she could not recover under the statute.
In the instant case the plaintiff did not participate in obtaining the liquor, because he was broke not because he was a woman. That he participated in the drinking from between 11 and 12 in the morning until after dark on May 11, 1954, drinking round for round with the other members of the party, is not denied, but on the contrary was freely admitted under oath by the plaintiff in the deposition. It is evident that such statements are admissions and that under the rules of the Supreme Court ...