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Town of City of Champaign v. Overmeyer's Inc.

AUGUST 11, 1958.

TOWN OF CITY OF CHAMPAIGN AND PEARL EWING, PLAINTIFFS. TOWN OF CITY OF CHAMPAIGN, PLAINTIFF-APPELLANT,

v.

OVERMEYER'S INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Champaign county; the Hon. CHARLES E. KELLER, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE ROETH DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 3, 1958.

The question involved in this appeal is a narrow and limited one. It is so conceded by both parties.

The plaintiff is a township. It commenced an action under the 1955 Amendment of the Dramshop Act, Ill. Rev. Stat. 1955, Chap. 43, Section 135, against the defendant dramshop keeper claiming that it was injured in its property.

The defendant filed a motion to dismiss, assigning as the sole and only ground for dismissal the following:

"The Town of the City of Champaign is not a proper plaintiff within the purview of the Illinois Dramshop Act, under which this Complaint is filed."

The trial court sustained the motion and dismissed the complaint. From that order this appeal was taken.

Plaintiff in its brief states that the issue on this appeal is a limited one and that it is whether a Township as a body politic is to be considered as a "person" within the language of the 1955 Amendment of the Dramshop Act. Defendant at the outset of its brief also states that this is the sole issue. We therefore expressly limit our opinion to the sole issue as defined by the parties.

Prior to the adoption of the 1955 Amendment to section 135 of the Dramshop Act that section, Ill. Rev. Stat. 1953, Chap. 43, provided:

"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; . . . ."

In a series of decisions, Economy Auto Ins. Co. v. Brown et al., 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 et al. v. Nathan et al., 14 Ill. App.2d 418, 144 N.E.2d 629, the courts of Illinois in construing the phrase "other person," applied the principle of ejusdem generis and held that the phrase meant a person of like classification as "husband, wife etc." The construction was succinctly laid out in New Amsterdam Casualty Co. v. Gerin, supra, where the court said:

"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. v. 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."

The court noted, however, as follows:

"The Economy case was decided in 1948 and if this decision did not truly interpret the legislative intent, ample time has intervened during which the legislature could ...


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