Appeal from the Circuit Court of Champaign county; the Hon.
CHARLES E. KELLER, Judge, presiding. Reversed and judgment here.
PRESIDING JUSTICE ROETH DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified August 5, 1958.
This is an action by the plaintiff, Joseph R. Dworak, the owner and operator of a certain Ford automobile, for the use of Allstate Insurance Company, his collision insurance carrier under a $50 deductible automobile collision insurance policy issued by it to Dworak insuring him against loss by collision, over and above the $50 deductible, against Maurice Tempel, doing business as Tempel's Tavern, defendant, a person engaged in the business of selling alcoholic liquor, and George B. McClellan, defendant, the owner and operator of a certain Pontiac automobile, to whom Tempel had sold or given alcoholic liquor which caused the intoxication of McClellan. The plaintiff seeks to recover $495.32 bound to be paid and paid by Allstate Insurance Company under its insurance policy to its insured, Dworak, for a loss sustained by collision to Dworak's automobile when it and McClellan's automobile collided December 2, 1955 in Champaign, Illinois. McClellan's intoxication is asserted to be the sole, proximate cause of the collision. The total loss by collision to Dworak's automobile was $545.32. The defendant, George B. McClellan, was not served with summons. This action was originally begun in a Justice of the Peace Court, where a judgment was entered for the defendants, from which the plaintiff appealed to the Circuit Court. The facts were stipulated at the trial in the Circuit Court.
From the stipulation it appears that Allstate Insurance Company issued to its insured, Joseph R. Dworak, a certain $50 deductible automobile collision insurance policy insuring him against loss to his Ford automobile by collision, over and above the $50 deductible.
On December 2, 1955 Joseph R. Dworak was driving his Ford easterly at a certain point on a certain street in Champaign at a certain time. At the same time and place George B. McClellan was driving his Pontiac automobile westerly on that street. McClellan's automobile struck and collided with Dworak's automobile in the eastbound lane of travel, Dworak having pulled to the curb and stopped.
Previously McClellan had consumed intoxicating liquor sold or given him by Maurice Tempel, doing business as Tempel's Tavern, and was intoxicated. His intoxication was the sole and proximate cause of the collision. Dworak's car suffered $545.32 collision loss or damage, and Allstate Insurance Company was bound to pay and did pay Dworak, the insured, $495.32 thereof.
It is important to note that the suit was commenced in the Justice of the Peace Court on August 1, 1956. The case was appealed to the Circuit Court and the stipulation was entered into on April 24, 1957. On April 26, 1957 the Circuit Court granted defendant's motion for judgment and this appeal followed.
It is the theory of the plaintiff that a collision insurance carrier has the right to be subrogated to the rights of its insured against a dramshop under the then existing Illinois law, and that the Trial Court committed reversible error in granting the motion of the defendant and entering judgment in his favor.
Counsel for both parties concede that the question involved in this case is new in Illinois. The first and foremost contention of defendant is that Allstate Insurance Company, the collision carrier for Joseph R. Dworak, or Joseph R. Dworak for the use of Allstate Insurance Company, is not an "other person" within the meaning of the Dramshop Act. In support of this contention counsel for defendant cites Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579, 79 N.E.2d 854; New Amsterdam Casualty Co. v. Gerin, 9 Ill. App.2d 545, 133 N.E.2d 723; and Eager v. Nathan, 14 Ill. App.2d 418, 144 N.E.2d 629. These cases were decided under the act then in force, Ill. Rev. Stat. 1953, Chap. 43, Section 135, which provided in part 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 any 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; . . . ."
While it is true that there is language in these cases that an insurance company generally, is not within the classification of the phrase "other person," the reason as set forth in New Amsterdam Casualty Co. v. Gerin, supra, is important. There the court observed:
"There is a good basis in the principles of legislative construction for the conclusion of the Economy case. The act states that `every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, . . . shall have a right of action. . . .' Ill. Rev. Stat. 1953, Chap. 43, Section 135. The act itself and the cases decided on the point indicate that since it is remedial the act should be given a liberal construction. Ill. Rev. Stat. 1953, Chap. 43, Section 94; Economy Auto Ins. Co. vs. Brown, 334 Ill. App. 579, 583. But even under a liberal construction we cannot construe the act beyond the intent of the legislature. The well known principle of construction, ejusdem generis, precludes extension of the term `other person' beyond the classes specifically enumerated. To be included, therefore, within the term `other person' the injured party must be of the same general classification as a `husband, wife, child, guardian or employer.' There is no indication that the legislature intended `other person' to include an insurance carrier."
Thus, as counsel for plaintiff concedes, if this logic is carried to its ultimate conclusion, if an intoxicated person, as a result of his intoxication were to run his automobile through a plate glass window of a building owned by Allstate Insurance Company no cause of action would exist against the dramshop, under the Dramshop Act as it existed prior to the ...