Appeal from the Circuit Court of Peoria County; the Hon. J.E.
RICHARDS, Judge, presiding. Reversed and remanded with
Rehearing denied and opinion modified March 19, 1963.
Plaintiff appeals from a judgment in bar of her suit for loss of support under the Illinois Dram Shop Act, Ill Rev Stats c 43, § 135 (1959). She had alleged that the defendant caused the intoxication of one Schwindenhammer as a result of which he drove his automobile into that of plaintiff's husband, thereby causing his death. She further alleged the employment of her husband as a salesman and the use of his earnings exclusively for the support of himself, his wife and minor child and prayed judgment for $20,000. Issue was joined by an appropriate answer denying these allegations.
After issue thus joined defendant filed her motion for summary judgment, supported by affidavit, asserting that others had paid the plaintiff amounts in excess of $20,000 under the Wrongful Death Act, Ill Rev Stats c 70, § 1 et seq. (1959), and that such amount, being in excess of the amount recoverable under the Dram Shop Act, was a complete bar to this suit. The trial court allowed the motion for summary judgment and entered an appropriate judgment in bar. Plaintiff then filed her motion to vacate the judgment and for leave to file an amended complaint. Attached to the motion was a proposed amended complaint alleging that her total loss of support aggregated $42,500; that others had paid her $22,500, which should be credited, and prayed judgment for the balance of $20,000 under the Dram Shop Act. The trial court denied the motion and this appeal followed.
Appellant first contends that summary judgment procedure was inappropriate as the subject matter of the motion should have been raised earlier in the case either by motion under CPA Sec 48, Ill Rev Stats c 110, § 48 (1959), or under CPA Sec 43(4), Ill Rev Stats c 110, § 43(4) (1959). We deem it unnecessary to determine whether the subject matter of defendant's motion was appropriate to the use of either of these sections of the CPA. That it might or could have been so used does not mean that it must have been so used. The summary judgment provisions of CPA Ill Rev Stats c 110, § 57(3) (1959) reads:
"The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."
The defendant's affidavit set forth specifically the payment of $22,500 by others under the Wrongful Death Act, the acceptance thereof and the execution and delivery of covenants not to sue by authority of the Probate Court of Peoria County, and attached a copy of the Probate Court proceedings. No counter-affidavits were filed. The plaintiff's proposed amended complaint demonstrates that the facts stated in the affidavit are true and that no counter-affidavits could have been filed. The payments made stand admitted. The facts stated in the motion for summary judgment must be taken as true. There is no "genuine dispute of a material fact." The trial court properly functioned under summary judgment procedure in so finding. Whether it functioned properly is the question before us.
[2-5] We deem the motion of the plaintiff to vacate the judgment adequate to reach the ultimate issue in this case. "`The purpose of the summary judgment procedure is not to try an issue of fact, but rather to determine whether there is an issue of fact. . . . If there is a material issue of fact, it must be submitted to the jury. The right of the moving party to a judgment should be free from doubt.'" Midwest Grocery Co. v. Danno, 29 Ill. App.2d 118, 123, 172 N.E.2d 648, 651. It appears that the moving party's right to a judgment must not only be free from factual doubt but that he must also show that he is "entitled to a judgment or decree as a matter of law." CPA See 57(3), noted above. In testing the motion of the defendant for summary judgment this court examines and considers the whole record before it and may even consider the sufficiency of the complaint although no motion has been directed to it. Moore v. Pinkert, 28 Ill. App.2d 320, 171 N.E.2d 73. We thus come face to face with the question whether as a matter of law the affidavit and motion of the defendant support the judgment that the plaintiff take nothing by her suit. We are impelled to hold that they do not.
The cases are legion which hold that the Dram Shop Act and the Wrongful Death Act create different statutory rights and duties. Their differences, history, philosophy and purposes have recently been amply and fully considered by our Supreme Court. Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157; Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153. Lengthy analysis of these two cases would appear to be pointless duplicity. In Izzo, at page 79, the Court said:
"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, 12 N.E.2d 878) or expanded (Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 6 ALR2d 790) by the provisions of the Wrongful Death Act. . . .
"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 would not quarrel with this statement if we could. We could not quarrel with it if we would. We have carefully studied both acts and there is nothing in either that suggests that either the one or the other is a delimitation of or an enlargement of the other. We can find nothing in either that suggests that the pursuit of a remedy under one against a certain class of wrongdoers is an election to abandon any suit against another class of wrongdoers under the other.
In Cunningham, the Supreme Court held that the Dram Shop 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. It refused to allow a common law action not based on the Act. It thus seems clear that to bar this action, as we are asked to do, exculpates the defendant tavern operator from liability by the use of a statute which does not control her. It would exculpate her because of payments made by others under a statute which was not intended either to supplant, enlarge or supplement the Dram Shop Act.
The defendant urges, however, that to permit recovery in the instant suit is to permit a double recovery or double satisfaction for a single injury. But does it? We necessarily observe that there was but one death but one basic injury from which the damages flow. We also necessarily observe that, in our modern economy, the damages flowing from this one death may, realistically, be in excess, as a matter of fact, of the aggregate permissible recovery under both acts. In each act the legislative dollar ceiling is the only recoverable loss under the particular act. We do not understand the legislature to have established the total "loss of support" or "pecuniary injuries" actually sustained, but only the limit recoverable under each act. Under the proposed amended complaint, the totality of damage from the single death is alleged to be $42,500. ...