Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
In a diversity action, filed in the district court at Chicago, Illinois, by citizens and residents of the state of Michigan against citizens and residents of the state of Illinois, plaintiffs Mary Ann Waynick, Wilma Ann Scruggs, and Carl Mack Waynick, Linda Kay Waynick, Nellie Sue Waynick and Alice Faye Waynick, minors, by Mary Ann Waynick, their mother and next friend, sought recovery of damages sustained by them, when an automobile under the control of Bruce Sims, its owner, and driven by Johnie E. Owens, collided on U.S. Highway 112 in the state of Michigan with an automobile driver by William Gerald Scruggs, who was killed in the collision. Plaintiffs' complaint named as defendants Chicago's Last Department Store, an Illinois corporation, Philip Saxner and Rubin Saxner, doing business as Phil's Tavern, and William Turbin, doing business as Matlan Liquors, who were engaged in the business of selling and furnishing intoxicating liquors in the state of Illinois.*fn1
It appears from the complaint that Chicago's Last Department Store's premises are situated in Chicago, Illinois, near the Indiana-Illinois state boundary, where said defendant has a large parking lot and caters to drive-in trade and extends an invitation to persons upon the public highway to purchase its wares, and that said defendant permitted said Sims and Owens to consume a large quantity of intoxicating liquor in its parking lot. The complaint further alleges that from 4 P.M. on July 28, 1956 to after midnight of said day, defendants Chicago's Last Department Store, the Saxners and Turbin sold and furnished intoxicating liquor to Sims and Owens, when they were intoxicated, and thus did contribute to their said intoxication, the liquor being furnished in large quantities both by the glass and by carry-out bottles, which intoxication resulted in and was the proximate cause of severe personal injuries and loss of means of support to plaintiffs.
The Saxners moved to dismiss the cause, for failure of the complaint to state a claim, while Chicago's Last Department Store and Turbin moved for judgment on the pleadings, on several grounds, including the following:
"4. Insofar as the plaintiffs' grievances are predicated upon this defendant's violation of a common law duty, if any, owing by it to plaintiffs as is implicitly asserted in paragraphs 12 and 19, the complaint fails to state a cause of action against this defendant because:
"a. At common law it is not actionable to sell alcoholic liquor to an adult; the common law gives no remedy for injury following the sale of intoxicating beverages to an ordinary man.
"b. Having created a right of action by enacting the Dram Shop Act, the General Assembly of Illinois has preempted the field."
From the court's order sustaining defendants' motions, plaintiffs have appealed. They rely for relief, in the alternative, on (1) §§ 22 and 29 of the Michigan Liquor Control Act,*fn2 (2) § 14 of the Illinois Dram Shop Act,*fn3 or (3) the common law.
It is our view that plaintiffs' reliance on either the Michigan act or the Illinois act rests upon such dubious grounds that we are impelled to reject those acts as a basis for our decision in this case. That leaves for us to decide whether the common law supports plaintiffs' cause of action. Before considering that question, we feel it proper to point out that the Illinois Dram Shop Act has been held not to apply extraterritorially to a situation where the sale of intoxicating liquor takes place in Illinois and the injury resulting therefrom occurs in another state. Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 154, 95 N.E.2d 512, 22 A.L.R.2d 1123, leave to appeal denied, 346 Ill.App. xiv. It appears to us that it is also probable that the Michigan Liquor Control Act is not applicable where a sale of intoxicating liquor in Illinois produces injuries in Michigan. Defendants so argue in this court and cite a Michigan court decision to support their contention. It would seem to follow that the practical consequence of denying extraterritorial effect to such acts is to leave a vacuum in the law insofar as unlawful sales of intoxicating liquor in one state produce injuries to third persons in another state. Certainly the position of defendants in this court is that the liquor control acts of Illinois and Michigan do not cover such a case. It seems to us, therefore, that their contention that the Illinois Dram Shop Act has "preempted the field", is unsound. Rather it would appear that the Act has avoided the field, rather than preempted it. If the common law does not cover the situation before us, there is actually no law applicable. As Aristotle said, nature abhors a vacuum; so does the law. Lest we too hastily reject the claim of these plaintiffs for pecuniary redress for death and injuries sustained in what was evidently an appalling automobile accident, we turn to the common law, which is in effect in the state of Michigan where the injuries occurred. The law of that state governs the tort liability asserted by plaintiffs herein. As was said in 133 A.L.R. 263:
"* * * where the question relates to the choice between the law of the place where the negligent act or omission took place and the law of the place where the injury or death or both were inflicted, by the almost unanimous consensus of decision the place of the tort, within the contemplation of the rule that the law of the situs of the tort governs the liability and substantive matters, is the place where the injury or death was inflicted and not the place where the negligent act or omission took place."
In Stout v. Keyes, 2 Doug. Mich., 184, 43 Am.Dec. 465, at 467, it was held that the common law applies in Michigan and that
"* * * a general principle of the common law, that whenever the law gives a right, or prohibits an injury, it also gives a remedy by action; * * *."
The injury having occurred in Michigan as a result of defendants' acts in Illinois, the common law of Michigan ...