Appeal from the Circuit Court of Cook county; the Hon. HARDIN
E. HANKS, Judge, presiding. Order affirmed.
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the trial court granting a new trial to the plaintiff after a verdict of not guilty for the defendant. It was first before us on a motion for leave to appeal, which was granted.
This is a cause of action arising under the Dramshop Act. The appeal of the defendant alleges (1) that there was not sufficient evidence on behalf of the plaintiff to sustain a verdict of guilty, and, if that had been the verdict of the jury, it could not have been allowed to stand, and (2) that the alleged impropriety of certain instructions relating to contributory negligence and proximate cause, were not, under the circumstances of the trial, sufficient to warrant the granting of the motion for a new trial.
It is proved beyond doubt that on June 27-28, 1952, the defendant Joseph Jerome Hughes was the operator of the tavern known as Joe's Deluxe Club at 6323 South Park Avenue, Chicago, Illinois. It is not disputed that on that night the plaintiff Percy R. Taylor had been in Joe's Deluxe Club. It is not disputed that one Paul Washington, the alleged assailant, came to Joe's Deluxe Club early in the evening of June 27, 1952 and remained in the club until sometime after 2:30 a.m., June 28, 1952, and that during that time he and his companions had been drinking whiskey from a bottle he had bought elsewhere and had watched a show in the "club" portion of the premises. It is not disputed that some time after 2:30 a.m. on June 28, 1952 an altercation of some sort took place between the plaintiff Percy R. Taylor and Paul Washington near the entrance of the Joe's Deluxe Club or on the street outside thereof, in which the plaintiff Percy R. Taylor was cut by a knife and in which Paul Washington was also cut.
There is conflicting evidence as to whether Paul Washington purchased any intoxicating liquors in Joe's Deluxe Club. There is conflicting testimony as to whether Paul Washington was intoxicated at the time of the assault. There is conflicting testimony as to whether Percy R. Taylor or Paul Washington was the aggressor in the assault and whether Percy R. Taylor afforded any provocation to Paul Washington.
There is no evidence in the record that the plaintiff Percy R. Taylor in any way procured the intoxication of Paul Washington, if he was intoxicated, by either giving or purchasing him drinks.
In order for the plaintiff to recover under the Dramshop Act he must establish that the proximate cause of the injury to himself was the intoxication of the injuring party, caused in part by the sale or gift of intoxicating liquor to the injuring party by the defendant. The law is plainly stated and explained in Danhof v. Osborne, 11 Ill.2d 77. The court said (p. 81):
"In respect to the causation question, the plaintiff concedes that she is required to prove that Pelie's intoxication was the proximate cause of the injury (King v. Haley, 86 Ill. 106; Cope v. Gepford, 326 Ill. App. 171; Bejnarowicz v. Bakos, 332 Ill. App. 151) or put another way, the effective cause. Cook v. Kirgan, 332 Ill. App. 294."
The court goes on to distinguish the question of causation by pointing out that in that case the assault was caused, not by the drunkenness of the plaintiff's husband or by the drunkenness of the assailant, but rather by the marital infidelity of the plaintiff's husband and the assailant's wife, and said that the proximate cause was not within the scope of the Dramshop Act. It has also been held that the question of proximate cause is a question of fact to be determined by the jury from consideration of all the evidence. Casey v. Burns, 7 Ill. App.2d 316, at p. 329; Lester v. Bugni, 316 Ill. App. 19; Martin v. Blackburn, 312 Ill. App. 549.
It is the well established law in this state that under the Dramshop Act a person who participates in procuring the intoxication of the person who commits the act about which complaint is made, cannot recover. In Hays v. Waite, 36 Ill. App. 397, at p. 399, the court said:
"Nor will such complaining party himself be allowed to furnish liquor which, in whole or in part, causes such intoxication of another. No person can profit by his own wrong-doing, nor will the law allow a recovery for an injury resulting from a force put in motion by the wrongful or illegal act of the person complaining."
It is equally well established that that doctrine is not a doctrine of contributory negligence. In Douglas v. Athens Market Corp., 320 Ill. App. 40, at p. 50, the court explained the distinction as follows:
"Contributory negligence implies that the action is predicated upon negligence. The action in the instant case is not predicated upon negligence, but upon violation of the Dram Shop Act. It is the law of this State that a plaintiff who participates in bringing about the intoxication of another, whose intoxication causes him to injure the plaintiff, may not recover." (citing cases.)
It is to be noted that both of the above cited cases involved an assault by an intoxicated person upon the plaintiff, and the defendant was the person who ...