Appeal from the Circuit Court of Champaign county; the Hon.
B.E. MORGAN, Judge, presiding. Judgment affirmed.
PRESIDING JUSTICE REYNOLDS DELIVERED THE OPINION OF THE COURT.
On the evening of November 21, 1956, Lewis McCormick was killed on Main Street in Gifford, Illinois, when a truck being operated by defendant Lorence Kopmann collided with the automobile which McCormick was driving.
This action was brought by McCormick's widow in the Circuit Court of Champaign County against Kopmann and Anna, John and Mary Huls. The complaint contains four counts; the issues raised on this appeal concern only the first and fourth counts.
Count I is brought by plaintiff as Administratrix of McCormick's Estate, against Kopman, under the Illinois Wrongful Death Act. Plaintiff sues for the benefit of herself and her eight children, to recover for the pecuniary injury suffered by them as a result of McCormick's death. It is charged that Kopmann negligently drove his truck across the center line of Main Street and collided with McCormick's automobile. In paragraph 3 of Count I, plaintiff alleges:
"That at the time of the occurrence herein described, and for a reasonable period of time preceding it, the said decedent was in the exercise of ordinary care for his own safety and that of his property."
Count IV is brought by plaintiff as Administratrix of McCormick's Estate, against the Huls, under the Illinois Dram Shop Act. Plaintiff avers that Count IV is brought "in the alternative to Count I." She sues for the benefit of herself and her four minor children, to recover for the injury to their means of support suffered as a result of McCormick's death. It is alleged that Anna Huls operated a dramshop in Penfield, Illinois; that John and Mary Huls operated a dramshop in Gifford; that on November 21, 1956, the Huls sold alcoholic beverages to McCormick which he consumed and which rendered him intoxicated; and that "as a result of such intoxication" McCormick drove his automobile "in such a manner as to cause a collision with a truck" being driven by Kopmann on Main Street in Gifford.
Kopmann, defendant under Count I, moved to dismiss the complaint on the theory that the allegations of that Count I and Count IV were fatally repugnant and could not stand together, because McCormick could not be free from contributory negligence as alleged in Count I, if his intoxication caused the accident as alleged in Count IV. Kopmann also urged that the allegation in Count IV that McCormick's intoxication was the proximate cause of his death, is a binding judicial admission which precludes an action under the Wrongful Death Act. Kopmann's motion was denied. He raised the same defenses in his answer.
The Huls, defendants under Count IV, answered. They did not file a motion directed against Count IV.
Neither defendant sought a severance (see Civil Practice Act, Sections 44(2) and 51) [Ill. Rev Stats 1957, c 110 §§ 44(2), 51] and both counts came on for trial at the same time.
Plaintiff introduced proof that at the time of the collision, McCormick was proceeding North in the northbound traffic lane, and that Kopmann's truck, travelling South, crossed the center line and struck McCormick's car. Plaintiff also introduced testimony that prior to the accident McCormick drank a bottle of beer in Anna Huls' tavern in Penfield and one or two bottles of beer in John and Mary Huls' tavern in Gifford. Plaintiff's witness Roy Lowe, who was with McCormick during the afternoon and evening of November 21, and who was seated in the front seat of McCormick's car when the collision occurred, testified on cross examination that in his opinion McCormick was sober at the time of the accident.
At the close of plaintiff's evidence, all defendants moved for directed verdicts. The motions were denied.
Kopmann, the defendant under the Wrongful Death count, introduced testimony that at the time of the collision, his truck was in the proper lane; that McCormick's automobile was backed across the center line of Main Street, thus encroaching on the southbound lane, and blocking it; that the parking lights on McCormick's automobile were turned on, but not the headlights; that Kopmann tried to swerve to avoid hitting McCormick's car; and that there was an odor of alcohol on McCormick's breath immediately after the accident. Over plaintiff's objection, the trial court permitted Kopmann's counsel to read to the jury the allegations of Count IV relating to McCormick's intoxication, as an admission.
The Huls, defendants under the Dram Shop count, introduced opinion testimony of a number of witnesses that McCormick was not intoxicated at the time of the accident. Anna Huls testified that McCormick drank one bottle of beer in her tavern. Several witnesses testified that McCormick had no alcoholic beverages in John and Mary Huls' tavern.
All defendants moved for directed verdicts at the close of all the proof. The motions were denied. The jury was instructed that Count IV was an alternative to Count I; that Illinois law permits a party who is uncertain as to which state of facts is true to plead in the alternative, and that it is for the jury to determine the facts. At Kopmann's request, the court instructed the jury on the law of contributory negligence, and further:
". . . if you find from all of the evidence in the case that (McCormick) was operating his automobile while intoxicated and that such intoxication, if any, contributed proximately to cause the collision in question, then in that case . . . you should find the defendant, Lorence Kopmann, not guilty."
The jury returned a verdict against Kopmann for $15,500 under Count I. The jury found the Huls not guilty under Count IV. Kopmann's motions for judgment notwithstanding the verdict, and in the alternative for a new trial, were denied.
Kopmann has appealed. His first contention is that the trial court erred in denying his pre-trial motion to dismiss the complaint. Kopmann is correct in asserting that the complaint contains inconsistent allegations. The allegation of Count I that McCormick was free from contributory negligence, cannot be reconciled with the allegation of Count IV that McCormick's intoxication was the proximate cause of his death. Freedom from contributory negligence is a prerequisite to recovery under the Wrongful Death Act. Russell v. Richardson, 308 Ill. App. 11, at page 27. If the jury had found that McCormick was intoxicated and that his intoxication caused the accident, it could not at the same time have found that McCormick was not contributorily negligent. The Illinois Supreme Court has held that "voluntary intoxication will not excuse a person from exercising such care as may reasonably be expected from one who is sober." Keeshan v. Elgin, A. & S. Traction Co., 229 Ill. 533, 537.
In addition to this factual inconsistency, it has been held that compensation awarded under the Wrongful Death Act includes reparation for the loss of support compensable under the Dram Shop Act. McClure v. Lence, 349 Ill. App. 341, 344; see also Howlett v. Doglio, 402 Ill. 311, 317-319.
Counts I and IV, therefore, are mutually exclusive; plaintiff may not recover upon both counts. It does not follow, however, that these counts may not be pleaded together. Section 24(1) of the Illinois Civil Practice Act (Ill. Rev. Stat. Ch. 110, Sec. 24) authorizes joinder of defendants against whom a liability is asserted in the alternative arising out of the same transaction. Section 24(3) of the Act provides:
"If the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, and state his claim against them in the alternative in the same count or plead separate counts in the alternative against different defendants, to the intent that the question which, if any, of the ...