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Knierim v. Izzo

OPINION FILED MARCH 29, 1961.

LILLIAN C. KNIERIM ET AL., APPELLANTS,

v.

THOMAS A. IZZO ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. THOMAS E. KLUCZYNSKI, Judge, presiding.

MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 17, 1961.

Six cases were consolidated by the superior court of Cook County because each involved the liability of tavern operators and owners of tavern premises under sections 12 and 14 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1957, chap. 43, pars. 131 and 135), and the common law. Three of the cases raise the further question of the liability of such defendants under the Wrongful Death Act. (Ill. Rev. Stat. 1957, chap. 70, pars. 1 and 2.) The trial court dismissed certain counts from each of the six complaints on the ground that they did not state a cause of action and found as to certain of them that there was no just reason for delaying enforcement or appeal. A fairly debatable constitutional question was presented by each of the six cases and was passed upon by the trial court in its judgments of dismissal.

The counts which are here for review are as follows: I, II, III, IV and VI in Knierim et al., v. Izzo et al.; I and III in Thompson et al., v. Baade et al.; II in Lillie et al., v. McNulty et al.; V, VI, VII, VIII, IX, X, XI, and XII in Finley et al., v. Dakin Liquors, Inc., et al.; II in Rogers et al., v. The Tiffin Angler's Club et al.; III and IV in Coleman et al., v. Albrecht et al. The substantive issues presented by these counts do not require a discussion of the allegations of fact giving rise to them. Accordingly we turn directly to a consideration of the specific legal problems presented.

An issue presented by many of the counts is whether, in addition to the remedy provided in section 14 of article VI of the Liquor Control Act, there exists one or both of the following remedies: (1) a civil action for violation of section 12 of article VI of the Liquor Control Act, which prohibits the sale, gift or delivery of alcoholic liquor "to any intoxicated person or to any person known * * * to be an habitual drunkard, spendthrift, insane, mentally ill, mentally deficient or in need of mental treatment," (2) a common-law action against a tavern operator who supplies intoxicating liquor to a person when the supplier knows the consumer has no volition with regard to consuming the intoxicant, therefore causing his intoxication or further intoxication and resulting in injury to the consumer or a third party. This precise question, together with the same arguments as are here advanced, was presented to us in the case of Cunningham v. Brown, ante, p. 23. We pointed out in that case that the original Dram Shop Act created a remedy unknown to the common law; that the only civil remedy under the act is contained in section 14; and that we are not required by section 19 of article II of our constitution to recognize a remedy which the legislature has already created even though the statutory remedy be limited as to recoverable damages. Our holding in the Cunningham case that section 14 of article VI of the Liquor Control Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication, is therefore dispositive of this first question.

Counts VI, VII, VIII, IX and X of the Finley complaint, counts III and IV of the Coleman complaint, count II of the Rogers complaint, and count II of the Lillie complaint were properly dismissed because each of them purported to state a cause of action against defendant tavern operators under the common law or for violating section 12 of article VI of the Liquor Control Act. Counts III and IV of the Knierim complaint were properly dismissed as to the defendant tavern operators for the same reason. Count III of the Thompson complaint is based in part on section 14 of article VI of the Liquor Control Act, and in part on a purported common-law liability of the defendant tavern operators. The count totally disregards the provisions of section 33 of the Civil Practice Act, (Ill. Rev. Stat. 1957. chap. 110, par. 33,) and defendants' objection that it consists "of a multiplicity of allegations which are unrelated and which place an impossible burden on these defendants as far as answering" is well taken. It was also properly dismissed.

The next question is whether an action can be maintained under the Wrongful Death Act against tavern operators and owners of tavern premises for death caused by an intoxicated person or in consequence of intoxication. It should be noted that the Wrongful Death Act is not a survival statute, (Holton v. Daly, 106 Ill. 131,) as plaintiffs seem to believe. The action created by that act is a new one for the pecuniary loss which the widow and next of kin may have sustained by reason of the death of the injured person. (Nudd v. Matsoukas, 7 Ill.2d 608.) Thus, the mere fact that the decedent may have been able to maintain an action under the Liquor Control Act, if he had lived, does not give his administrator such an action.

Although both the Wrongful Death Act and the Liquor Control Act provide that an administrator may maintain an action, the persons entitled to recovery, the measure of damages, the bases of liability and the maximum recovery are not the same under the two acts. The persons entitled to recovery under the Wrongful Death Act are the widow and next of kin (Nudd v. Matsoukas, 7 Ill.2d 608); the measure of damages is the pecuniary loss suffered by such beneficiaries, (Ill. Rev. Stat. 1957, chap. 70, par. 2,) and when the kinsman are lineal a presumption of pecuniary loss obtains, from the relationship alone, sufficient to sustain a verdict and judgment awarding substantial damages, without proof of actual loss (Wilcox v. Bierd, 330 Ill. 571); the action is based on the wrongful act of the defendant (Clarke v. Storchak, 384 Ill. 564); and the maximum recovery for the class of beneficiaries is $30,000. (Ill. Rev. Stat. 1957, chap. 70, par. 2.) Under the Liquor Control Act persons who were in fact receiving support from the decedent are entitled to recovery. Thus, although a sister may not be the next of kin she may recover for her loss of support (Nagle v. Keller, 237 Ill. 431), and a parent who is the next of kin may be denied recovery when he has lost no support. (Howlett v. Doglio, 402 Ill. 311.) The presumption of loss existing under the Wrongful Death Act when the beneficiaries are lineal kinsmen does not exist under the Liquor Control Act (Howlett v. Doglio, 402 Ill. 311); the defendant's liability is not based on fault (Osborn v. Leuffgen, 381 Ill. 295); and the maximum recovery for the class of beneficiaries is $20,000. (Ill. Rev. Stat. 1957, chap. 43, par. 135.) Because of these and other distinctions between the two acts we have held that the two acts are separate and distinct and that the nature and amount of damages provided for in the Liquor Control Act are not to be limited (O'Connor v. Rathje, 368 Ill. 83) or expanded (Howlett v. Doglio, 402 Ill. 311) by the provisions of the Wrongful Death Act.

The Liquor Control Act creates a right of action in the personal representative of the deceased for the exclusive benefit of the person or persons injured in their means of support and limits the amount recoverable in such an action to $20,000. A comparison of the two acts reveals that the General Assembly did not contemplate that the Wrongful Death Act should supplant or supplement the remedy it carefully created and limited. We hold therefore that the Liquor Control Act provides the only remedy against tavern operators and owners of tavern premises for any death caused by an intoxicated person or in consequence of intoxication.

Count I of the Thompson complaint and count XII of the Finley complaint were properly dismissed because each of them purported to state a cause of action against defendant tavern operators under the Wrongful Death Act. Counts I and II of the Knierim complaint were properly dismissed as to the defendant tavern operators for the same reason.

The substantive issue raised by count VI of the Knierim complaint is whether mental disturbance not resulting in any physical injury or disability constitutes an injury to person within the meaning of section 14 of article VI of the Liquor Control Act. This court at an early date held that mental anguish, disgrace, and loss of society do not constitute an injury to person within the meaning of the act. (Albrecht v. Walker, 73 Ill. 69; Freese v. Tripp, 70 Ill. 496), and this appears to be the rule in other States with similar statutes. (Annot., 6 A.L.R.2d 798.) If we were to hold that mental disturbance now constitutes an injury to person, we would be doing what the legislature has not seen fit to do in the numerous amendments to the act since 1874 when the Freese decision was rendered. This court cannot, under the guise of statutory construction, enlarge the classification of actionable injuries under the act. (Howlett v. Doglio, 402 Ill. 311.) The count in question was properly dismissed.

The question raised by count XI of the Finley complaint is whether a widow can maintain an action for damage to her property under the Liquor Control Act because she has depleted her own funds to support herself and her daughter during a period when her husband was habitually intoxicated and did not provide support for them. The widow in this situation may have been damaged in property but the cause of her damage is the absence of support by her husband. Her cause of action, if any, is for injury to means of support. The count must be treated therefore as an action for loss of support and not as damage to property. So regarded, the cause of action attempted to be stated in count XI is no more than a repetition of that stated in count II of the same complaint, which is still pending in the trial court.

Several other questions regarding the liability of tavern operators and owners of tavern premises under section 14 of article VI of the Liquor Control Act are raised in plaintiffs' brief, but we deem it unnecessary to discuss them in view of the fact that each of the counts was properly dismissed as to such defendants for the reasons just given and a discussion of the other questions would make this opinion unduly long. There remains, however, the ...


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