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Hernandez v. Diaz

JANUARY 7, 1964.

JOHN HERNANDEZ, PLAINTIFF-APPELLANT,

v.

DOMINGO DIAZ, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a final order of June 28, 1962, dismissing defendants under count one of an action based upon section 135 of the Dram Shop Act (Ill Rev Stats 1961, c 43, § 135) and entering judgment thereon.

The question before the court is whether the 1955 amendments to the Dram Shop Act eliminated a cause of action by a person injured "in consequence" of the intoxication of any person when such action is brought directly by the person injured for his own damages and not by one suing for loss of support.

In the early morning of September 16, 1956, John Hernandez, the plaintiff, was seated in a Chicago "lounge." Four men, who were not known to Hernandez, entered. After purchasing drinks, the four men, who were intoxicated, became rowdy and offensive and began throwing bottles and other objects. One, John Brown, a guard hired by the owners of the "lounge," at the request of the bartender, asked the four rowdies to leave. When they became threatening he pulled out a revolver and in the ensuing struggle a shot was fired which struck plaintiff in the abdomen.

Plaintiff brought an action under the Dram Shop Act in count one against the owners of the "lounge" and also against certain other individuals — owners of the bars where the four rowdies had previously been drinking. Count two was in common law assault against Domingo Diaz, the operator of the "lounge," and against Ability City Patrol Service and Detective Agency, Incorporated, the employer of John Brown.

The relevant parts of section 135 before the 1955 amendments read as follows:

"Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication . . . of any person, shall have a right of action in his or her own name . . . against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person . . ." Ill Rev Stats 1955, c 43, § 135.

The relevant parts of section 135 after the 1955 amendments are as follows:

"Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name . . . against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; . . ." Ill Rev Stats 1961, c 43, § 135.

It is the contention of plaintiff that an action under section 135 of the Dram Shop Act could have been maintained prior to the 1955 amendments under the "in consequence" theory by a party who was injured suing in his own behalf and not for loss of support. (Klopp v. Benevolent Protective Order of Elks, Lodge No. 281, 309 Ill. App. 145, 33 N.E.2d 161.) Plaintiff points out, however, that this particular use of the "in consequence" theory was very rare — occurring usually in cases where the intoxicated person had committed suicide. Whiteside v. O'Connors, 162 Ill. App. 108; Jack v. Prosperity Globe Co., 147 Ill. App. 176. The great majority of "in consequence" cases were brought by dependents of the intoxicated person who had been injured because of the incapacitation of the intoxicated person. King v. Haley, 86 Ill. 106; Appleman, Illinois Dramshop Briefs, page XIX, (2d Ed 1960). These cases were for injury to means of support.

In 1955 the Illinois legislature completely revamped the 1874 Dram Shop Act as rewritten in 1934. Both parties mention that the legislature had available before them the prior judicial interpretations of the Act. Plaintiff contends that the original section 135, allowing actions by the injured party himself under both the "in consequence of" the intoxication theory and "by" any intoxicated person theory, was split only for evidentiary purposes. He points out that the courts had consistently held that the causal connection was different in the two theories and that the legislature acted only logically in separating them according to burden of proof.

This, however, does not explain why the legislature omitted the term "in consequence of" in new section 135 where it speaks of the remedies of "every person, who shall be injured." In the absence of any hearings showing the intent of the legislature, yet with the knowledge that it was familiar with the past judicial interpretations of the act we must conclude that the legislature deliberately omitted the theory upon which plaintiff relies.

Plaintiff contends that to hold as we do would create an anomaly in the law. He points to the general purpose of the act, which was not altered in the 1955 revisions, and which states:

"This act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, ...


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