Appeal from the Superior Court of Cook county; the Hon. HAROLD
G. WARD, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This action arose under the Dramshop Act (Ill. Rev. Stat. 1957, chap. 43, par. 135) and was based upon the sale of intoxicating liquors by the defendants to one Samuel St. Clair, the husband of Helena St. Clair, who, as is alleged, while intoxicated provoked a quarrel with Eugene St. Clair, his minor son, and stabbed him to death. The complaint is in two counts. Count one is brought by Helena St. Clair, individually and as administratrix of the estate of Eugene St. Clair, deceased, and certain minor children, by Helena St. Clair, their mother and next friend, and is predicated upon the loss of means of support from Eugene St. Clair. Count two was brought by Helena St. Clair, Virginia St. Clair, Russell St. Clair, Frances St. Clair and Lawana St. Clair, minors, by Helena St. Clair, their mother and next friend, against certain defendants, and charges that Samuel St. Clair, the husband of Helena St. Clair and the father of Eugene St. Clair and four other children, became intoxicated from liquors furnished him by the defendants and as a direct and proximate cause of his intoxication he (Samuel) provoked a quarrel with Eugene and stabbed him to death; that Samuel was prosecuted for murder, convicted and incarcerated in prison for a long period of time; that he was later released on probation; that because of the conviction the plaintiffs were deprived of his earnings and future earning capacity; and that at the time he was sentenced to the penitentiary he was gainfully employed and contributed to the support of each of the plaintiffs.
Several of the defendants moved to dismiss count two on the grounds that the Dramshop Act authorizes recovery only for death or injury to a provider; that the said loss of means of support did not result from death or injury occasioned to the alleged provider Samuel St. Clair; and that the loss of support was not the direct and proximate result of the sale or gift of alcoholic liquors to the said Samuel, but was the direct and proximate result of the independent intervening acts of the People of the State of Illinois. The court sustained the motion to dismiss count two, and from that order this appeal is taken.
No question was raised in the trial court, nor here, with reference to the joinder of parties plaintiff under count two.
The Dramshop Act was first adopted in 1874, and from that date until 1949 no substantial changes were made. In 1949 the Act was amended limiting the time in which suit could be brought as well as the amount of recovery, and eliminating the provision for exemplary damages. In 1955 it was again amended. Before the 1955 amendment the Act provided (chap. 43, par. 135):
"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. . . ."
After the 1955 amendment, which was effective July 1, 1956, the Act provided:
"Every person, who shall be injured, in person or property by any intoxicated 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. . . . An action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid. Such action shall be brought by and in the name of the person injured or the personal representative of the deceased person, as the case may be, from whom said support was furnished. . . . Recovery under this Act for injury to the person or to the property of any person as aforesaid, shall not exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured where such injury occurred prior to the effective date of this amendatory Act of 1955, and not exceeding $20,000 for each person so injured after the effective date of this amendatory Act of 1955. . . ."
In Howlett v. Doglio, 402 Ill. 311, speaking of the Act generally, the court says:
"It was not an actionable tort at common law either to sell or give intoxicating liquor to `a strong and able-bodied man,' and such an act was not deemed to be culpable negligence imposing liability for damages upon the vendor or donor of the liquor. (Cruse v. Aden, 127 Ill. 231.) Although the Dram Shop Act is penal in character and should be strictly construed, (Cruse v. Aden, 127 Ill. 231; Meidel v. Anthis, 71 Ill. 241,) the legislation is, at the same time, remedial and should be so construed as to suppress the mischief and advance the remedy. (Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579; Klopp v. Benevolent Protective Order of Elks, Lodge No. 281, 309 Ill. App. 145; Hyba v. C.A. Horneman, Inc., 302 Ill. App. 143.)"
Prior to the 1955 amendment it was recognized that a cause of action could arise in favor of the person claiming loss of support when that loss arose from a criminal act committed while intoxicated by the person furnishing the support. In Danhof v. Osborne, 11 Ill.2d 77, the court says:
"Heretofore, liability in these loss-of-support cases has been limited principally to instances where the intoxicated person, because of the intoxication, commits some affirmative act resulting in harm to himself or others. (E.g., drives an automobile in a reckless manner, Bejnarowicz v. Bakos, 332 Ill. App. 151; commits suicide, Hammers v. Knight, 168 Ill. App. 203; commits a criminal act, Brown v. Moudy, 199 Ill. App. 85; squanders his funds, etc., Siegle v. Rush, 173 Ill. 559; provokes an assault, Casey v. Burns, 7 Ill. App.2d 316.)"
In the case of Spousta v. Berger, 231 Ill. App. 454, an action was brought by a wife for damages resulting from the sale of intoxicating liquor to her husband by the defendant and was predicated upon the conviction and imprisonment of the husband for a crime committed as the result of the intoxication, and the court sustained the wife's recovery.
[1-6] It is the contention of the defendants that the provision of the statute to the effect that the action must be brought in the name of the person injured, from whom the said support was derived, should be considered as meaning that there could be no recovery unless a physical injury had been incurred by the person providing the support and that the decisions of the Illinois courts interpreting the Act before the amendment are no longer applicable. To so hold would, in our opinion, require a strained construction of the statute. If the legislature had so intended it would have so stated. In the Act as amended the term "injured" or "injuries" is used several times, and the meaning must be interpreted considering the subject to which the word refers and with reference to the context. In Moran v. Katsinas, Trustee, et al., 16 Ill.2d 169, opinion filed March 20, 1959, considering this Act, the Supreme Court says: "In construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary. (People ex rel. Lipsky v. City of Chicago, 403 Ill. 134; Stiska v. City of Chicago, 405 Ill. 374.) . . ." The provision in the Dramshop Act that "an action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid" is substantially the same as the provision was before the amendment. This sentence in the amendment creates the right of action for injuries to means of support. Huckaba v. Cox, 14 Ill.2d 126, 130. The word "injuries" there used does not mean physical injuries. It means that the person entitled to support received an injury through being deprived of means of support and that such injury was a violation of his legal rights. Jury v. Ogden, 56 Ill. App. 100, 105. The sentence following the quoted portion of the section states in whose name the action shall be brought (Huckaba v. Cox, supra; Steller v. Miles, 17 Ill. App.2d 435), and the word "injured" as used therein should be given its ordinary meaning. In Webster's New International Dictionary, 2nd Ed., "injury" is defined as "damage or ...