Appeal from the Circuit Court of Piatt County; the Hon. BIRCH
E. MORGAN, Judge, presiding. Reversed and remanded with
ROETH, PRESIDING JUSTICE.
Rehearing denied June 18, 1962.
Plaintiff Robert Eugene Chaney, a minor, by next of friend and plaintiff Peggy Chaney, filed suit on September 4, 1959, against the defendants Walter Hunter, Harold McKee and Elbert Mitchell under the Dram Shop Act, seeking recovery for personal injuries sustained while riding in an automobile being driven by Clarence E. Chaney, an alleged intoxicated person. In Count 1 the minor is plaintiff and in Count 2 Peggy Chaney is plaintiff. The first three paragraphs of Counts 1 and 2 are identical and since this appeal revolves around these allegations we copy them verbatim as follows:
"1. That on September 6, 1958, and for a long period of time prior thereto the Defendants Walter Hunter and Harold McKee were joint licensees under a license duly issued for the operation of a tavern or dram shop under the laws of the State of Illinois, commonly known as the "Hilltop Inn" located in the Village of DeLand, Illinois, legal title to which premises was upon the date in question in the Defendant Elbert Mitchell, the said premises being legally described as follows:
(Here follows a legal description of the premises)
"2. That the said Defendants, Walter Hunter and Harold McKee, were then and there operating under the terms and provisions of Illinois Revised Statutes, Chapter 43, Section 135, the terms and provisions of which statute are herein incorporated by reference;
"3. That on September 6, 1958, in the evening and night hours thereof, Clarence E. Chaney entered upon the premises owned and operated by Walter Hunter, Harold McKee and Elbert Mitchell, and was then and there sold or given alcoholic liquors by the said Defendants Walter Hunter and Harold McKee, or by their duly authorized agents and servants acting in the course and scope of their employment, which alcoholic liquors the said Clarence E. Chaney consumed upon the said premises and which contributed to render him intoxicated";
Paragraph 1 of the complaint thus alleges in substance that defendants Hunter and McKee were licensees under a dram shop license for operating a tavern on premises owned by defendant Mitchell.
In paragraph 2 of the complaint the provisions of Sec 135 of the Dram Shop Act are incorporated by reference which is tantamount to incorporating this section in paragraph 2 as though it were copied therein. So far as material this section provides:
"Every person who shall be injured . . . by any intoxicated person, shall have a right of action . . . against any person . . . who shall, by selling or giving alcoholic liquor, have caused the intoxication . . . of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid . . ."
Paragraph 3 of the complaint alleges that one Clarence E. Chaney entered the dram shop "owned and operated by Walter Hunter, Harold McKee and Elbert Mitchell." Then follow the usual allegations of sale or gift of intoxicating liquors, intoxication, and injury to plaintiffs while riding in an automobile being driven by the alleged intoxicated person. Count 1 prays damages for the minor and Count 2 prays damages for the plaintiff Peggy Chaney "against the defendants Walter Hunter, Harold McKee and Elbert Mitchell in the amount of $20,000."
Each defendant was personally served with summons on September 8, 1959, by the Sheriff of Piatt County. None of the defendants filed any appearance or other pleading and on February 11, 1960, an order of default was entered against each defendant and the cause was set for trial before a jury on March 21, 1960. On March 21, 1960, at a trial before a jury verdicts were rendered for each plaintiff against the defendants for $15,000. Judgments were entered on the verdicts on the same day.
On April 19, 1960, the defendants filed a motion supported by affidavits. The affidavits filed undertook to set up facts to excuse their lack of diligence in appearing and answering pursuant to the command of the summons and undertook to set up claimed facts constituting a meritorious defense. This motion prayed that the default and judgments be vacated and that defendants be granted leave to plead to the merits or in the alternative that a new trial be granted. Subsequently on May 27, 1960, defendants filed an amendment to this motion in which they challenged the sufficiency of the complaint to state a cause of action, and contended that the complaint did not state a cause of action and that therefore the judgments were void. The specific point urged in the amendment was that the complaint did not allege knowledge on the part of the defendant Mitchell that alcoholic liquors were being sold on the premises. It ...