Appeal from the Circuit Court of Rock Island county; the Hon.
LEONARD E. TELLEEN, Judge, presiding. Reversed and remanded with
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 3, 1958.
The events culminating in this dramshop suit began at 3:45 A.M. on February 23, 1952, when the body of Donald Hocker was found by a passerby lying in a ditch in Moline. There was a bullet hole behind his left ear and another in his side. His widow, two children and one other child dependent upon him filed a dramshop suit under Chapter 43, Section 135 (Ill. Rev. Stats. 1953) to recover damages for loss of means of support. A trial was had before a jury in the Circuit Court of Rock Island county, and verdicts and judgments aggregating $20,000 resulted. The two dramshop defendants appealed.
Plaintiffs alleged in their complaint and took the position before this court in briefs and arguments that the defendant taverns sold liquor to one Beasley, causing Beasley's intoxication, and that Beasley, while so intoxicated, shot and killed Donald Hocker. The case was tried below and argued and briefed here on the theory that plaintiffs sustained damages by an intoxicated person in distinction to the theory that plaintiffs had been damaged in consequence of the intoxication of Donald Hocker, King v. Haley, 85 Ill. 106, 108.
The first point which defendants urge for reversal is that the trial court erred in giving plaintiffs' Given Instruction No. 6, which is in words as follows:
"The court instructs the jury that if you find from the greater weight of all of the evidence that on February 23, 1952, the defendant Max O'Klock, his servants and employees, sold or gave alcoholic liquor to Ralph Beasley and caused or materially contributed to cause his intoxication, and that while so intoxicated, the said Ralph Beasley killed Donald Hocker, and that the plaintiffs were thereby injured in their means of support, then you should find Max O'Klock guilty and award damages in favor of Vivian Hocker, Donald A. Hocker, Donna Lynn Hocker and Harry W. Hocker."
Defendants point out that this dramshop case was brought under the "by theory" and contend that the instruction was erroneous because it did not require the jury to find that the intoxication be the cause of the injury either proximate or remote. Defendants specifically admit that they do not contend that the intoxication must be the proximate cause of the injury, as has been repeatedly held by this and other courts, Cope v. Gepford, 326 Ill. App. 171; Haw v. 1933 Grill, Inc., 297 Ill. App. 37; and Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579. The above cases hold that when the action is for any injury resulting from the direct affirmative act of an intoxicated person, the doctrine of proximate cause has no application and liability accrues upon proof of that fact.
Tested in the light of these principles we do not find that plaintiffs' Given Instruction No. 6 above was error. To require that plaintiff qualify his instructing by inserting a phrase to the effect that the intoxication of Beasley must have been the cause of Beasley killing Hocker would be to vitiate the above long-standing and well-reasoned line of authority. We note further that the Defendants' Given Instruction No. 31 contained the same language as the complained of instruction and did not contain any qualification that the intoxication must have been found to be the cause of the shooting. Since defendants' instruction adopted and presented an identical theory to the plaintiffs' complained of instruction, defendants cannot complain that the court did not instruct on some different theory than the one presented by defendants' own instruction, Borst v. Langsdale, 8 Ill. App.2d 88.
For the reasons above stated, we likewise find that it was not error for the trial court to refuse to give the Defendants' Tendered Instruction No. 19, which in substance instructed the jury that if they found from the evidence that Beasley shot and killed Hocker, before they might find the defendants guilty, they must find that the act of Beasley in shooting Hocker was related to the intoxication of Beasley and, further instructing, that if they found that such an act of shooting was an independent, malicious, wilful act, entirely unrelated to intoxication, then they should find the defendants not guilty. While it is true that all parties to a lawsuit are entitled to instructions on their theory of the case, what the defendants are here contending for is that they are entitled to instructions upon two conflicting theories of the case and that is not and has never been the law.
The most serious point raised by the defendants and relied upon them for reversal is whether or not there was any evidence adduced at the trial that Donald Hocker in fact was shot and killed by Beasley. Defendants contend that there was not.
The law is well settled. When all the evidence is considered, together with all reasonable inferences from it, in its most favorable aspect to the plaintiffs, if there is a total failure of proof to support any necessary element of plaintiffs' complaint, then it is the duty of the trial court to direct a verdict for the defendants or to enter judgment notwithstanding the verdict. If, as here, the trial court refused so to do, then it is the duty of this court to reverse the judgment of the court below, Lindroth v. Walgreen Co., 407 Ill. 121; Bartolucci v. Falleti, 382 Ill. 168.
The pertinent evidence most favorable to the plaintiffs may be briefly stated:
Hocker at the time he was killed was 31 years of age and was employed in a factory. On February 22, 1952, Hocker left his home in a 1948 Ford automobile. He was seen at the White Mule Tavern owned by defendant O'Klock from 1:00 P.M. to 7:00 P.M. that date. Beasley arrived at the White Mule at about 2:00 P.M. While at the White Mule, Hocker was seen to play cards, exchange "smart" remarks with Beasley and to drink a large quantity of beer. Beasley played a game of shuffle alley, made a pest of himself at the bar with a lady and ...