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Miller v. Owens-illinois Glass Co.

MAY 25, 1964.

FLOYD MILLER, INDIVIDUALLY, AND FOR THE USE AND BENEFIT OF CECIL MILLER, ET AL., INDIVIDUALLY, AND CHERYL LYNN MOUSER, ET AL., MINORS, BY DORIS MOUSER, THEIR MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,

v.

OWENS-ILLINOIS GLASS COMPANY, A CORPORATION, ROBERT REDD, ET AL., AND MADISON ONIZED ASSOCIATION, AN UNINCORPORATED ASSOCIATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding. Affirmed. REYNOLDS, J.

This action was brought under the provisions of the Dram Shop Act, section 135, chapter 43, and the Family Expense Statute, section 15, chapter 68, Illinois Revised Statutes.

The complaint, as amended, alleged that the Madison Onized Association consisted of members who were employed by Owens-Illinois Glass Company at its Madison, Illinois plant and was organized for the purpose of improving the general welfare, well-being, and social activities of the members, and the employer-employee relationship of the members with the employer; that on September 9, 1961, the Madison Onized Association held a picnic for the benefit of its members on premises owned by the employer Owens-Illinois Glass Company, at Madison, Illinois; that the individual defendants were members of the Madison Onized Association and some of them were officers and some of them were on committees in charge of the picnic; that alcoholic liquors were served and dispensed at the picnic by the various committees of the association, and that plaintiffs were injured by an automobile driven by one Gerald E. Liebold, who was intoxicated in whole or in part by alcoholic liquors served or given him at the picnic.

The complaint, as amended, consisted of nine counts, and to it each defendant filed motion for summary judgment supported by affidavit. The motion of Owens-Illinois Glass Company stated that it was not engaged in the liquor traffic, was not licensed under the provisions of the Dram Shop Act as a liquor dealer, wholesaler, distributor, or manufacturer, that it did not control or establish the rules and regulations of the Madison Onized Association, but that the association is governed and controlled by its employees, and that the glass company did not plan, sponsor, pay for, or purchase any supplies for the picnic.

The motion of Madison Onized Association stated that it is an unincorporated association and a voluntary organization of employees of the Madison plant of Owens-Illinois Glass Company; that it is not engaged in the liquor traffic and is not licensed as a liquor dealer, wholesaler, distributor or manufacturer; that the association is not controlled, sponsored, nor are rules and regulations established by the Owens-Illinois Glass Company.

The motion of the employees named as defendants stated that each of these individual defendants are full time employees of Owens-Illinois Glass Company at its Madison plant, are not engaged in the liquor traffic and not licensed as a liquor dealer, distributor or tavern owner, and none are owners of any real estate from which alcoholic liquors are given away or sold.

The plaintiffs filed their motion to strike the affidavits filed in support of the defendants' motions for summary judgment. The affidavit supporting plaintiffs' motion to strike the affidavits of defendants, claimed the glass company did stage the picnic as set forth in the complaint, either by itself or by and through the Madison Onized Association, which association was claimed to be financed by vending machines in the plant, cash gifts awarded the employees for efficiency, and by the sale of glassware manufactured by a subsidiary of the glass company. The constitution and bylaws of the association, and cancelled check for the purchase of liquor by the association were attached to the motion to strike.

The Circuit Court ordered that the motion to strike defendants' affidavits be denied, and that the motions of each and every defendant for summary judgment should be allowed. Judgment was entered in favor of each defendant and against each plaintiff. This order was issued as a final order under section 50(2) of the Civil Practice Act. Plaintiffs appeal to this court.

The appeal is taken on the pleadings alone, the plaintiffs claiming that the affidavits in support of the motions for summary judgment were insufficient in that they did not conform to the rules of court applicable thereto; that intoxicating liquor need not be sold by a licensed person to render the seller liable under the Dram Shop Act; that the law does not require as a condition of liability that the owner of premises be engaged in the liquor traffic; and that persons engaged in the liquor traffic with the purpose of expectation of a pecuniary gain or profit are liable for civil damages under the Dram Shop Act.

As a practical matter, all of the grounds assigned as error in this appeal are contained in the first ground, namely, that the affidavits in support of the defendants' motions for summary judgment were insufficient. Summary judgments are provided for in section 57 of the Civil Practice Act. Supreme Court Rule 15 prescribes the form and the necessary requirements of the affidavit in support of a motion for summary judgment. A summary judgment may be granted 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. If the affidavits supporting defendants' motion for summary judgment are insufficient, then the judgment should not have been entered. If they are sufficient as a matter of law, the judgment was proper. The decision of this court as to the sufficiency of the affidavits will dispose of the question of liability whether licensed as a liquor dealer, liability whether engaged in the liquor business, and the question of pecuniary interest.

Our courts have clearly defined the procedure and requirements for summary judgment. If the pleadings, depositions and admissions on file, show that there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law. Kamholtz v. Stepp, 31 Ill. App.2d 357, 176 N.E.2d 388. The purpose of a summary judgment procedure is not to try an issue of fact but rather to determine if one exists. J.J. Brown Co., Inc. v. J.L. Simmons Co., Inc., 2 Ill. App.2d 132, 118 N.E.2d 781; Midwest Grocery Co. v. Danno, 29 Ill. App.2d 118, 172 N.E.2d 648; Simaitis v. Thrash, 25 Ill. App.2d 340, 166 N.E.2d 306. The right of the moving party should be free from doubt, determinable solely as a question of law. Bertlee Co., Inc. v. Illinois Publishing & Printing Co., 320 Ill. App. 490, 52 N.E.2d 47; J.J. Brown Co., Inc. v. J.L. Simmons Co., Inc., 2 Ill. App.2d 132, 118 N.E.2d 781. The whole record must be considered. Kamholtz v. Stepp, 31 Ill. App.2d 357, 176 N.E.2d 388.

The law is well stated in the case of Simaitis v. Thrash, 25 Ill. App.2d 340, 166 N.E.2d 306 where the court said:

"Summary judgment procedure may not be used to impair the right of trial by jury. Its purpose is not to try an issue of fact but to try whether one exists between parties within the legal meaning. Sampson Co. v. Mandel Bros., 3 Ill. App.2d 92, 120 N.E.2d 571. The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon and, if there is, the motion for summary judgment must be denied. Gribben v. Interstate Motor Freight System Co., 18 Ill. App.2d 96, 151 N.E.2d 443."

Each motion for summary judgment by the defendants, was supported by an affidavit stating that the defendant was not engaged in the liquor business, was not licensed to do business as a liquor dealer, wholesaler, distributor or manufacturer. The plaintiffs contend that the statements made by defendants that they were not engaged in the liquor traffic cannot overcome the specific showing of the purchase, handling and serving of alcoholic liquors at the picnic, and that this statement is a mere conclusion on the part of the defendants. This court does not agree with that contention. The affidavits set out facts with certainty and if there is any conclusion it is on the part of the plaintiffs when they assert that the showing of the purchase of a large amount of intoxicating liquor and the serving of it at a picnic which was attended by members of the association, constituted engaging in the liquor traffic. Likewise, to state that the permission of the glass company for its employees to receive the proceeds of vending machines, permitting the use of the land or grounds of the employer glass company for a picnic, and the giving of cash gifts to employees or groups of employees for efficiency constituted such actions and conduct as to render the employer as engaging in the liquor traffic, is only a conclusion on the part of the plaintiffs. While the plaintiffs are not the movers in the summary judgment procedure, in the final analysis, in order to refute the statements of fact relied on in the affidavits supporting the motions for summary judgment, any statements under oath attaching the alleged facts set forth in the affidavits must also be facts and not conclusions.

In considering the questions involved here, it is apparent that the statement of facts set out in the affidavits of the defendants were true. Neither the glass company, the association or the individual defendants were engaged in the business of selling, distributing, or manufacturing intoxicating liquors. Likewise, none of the defendants were licensed to sell, distribute, or manufacture intoxicating liquors. The glass company as owner of the premises had no direct pecuniary interest in the picnic or its conduct. Yet, unquestionably the Madison Onized Association held a picnic for which intoxicating liquor was bought, and which was dispensed to the members of the association attending the picnic. The picnic was held on the premises of the employer, defendant Owens-Illinois Glass Company, with its consent. The complaint alleges and it is not disputed that Gerald Leibold, a member of the association and an employee of Owens-Illinois Glass Company, attended the picnic and consumed intoxicating liquors and while intoxicated, injured the plaintiffs. Assuming all these matters to be true, is the assertion by way of motion for summary judgment supported by affidavits as to the fact, that none of the defendants were engaged in the liquor business in any way, and that none were licensed to do business as a liquor dealer or otherwise, sufficient to support a summary judgment in favor of the defendants? In answering this question, with hundreds of cases involving the Dram Shop Act, we find there is no direct authority or opinion on this point. Certainly, the Dram Shop Act applies to those persons who are licensed to do business in the sale of intoxicating liquors. It applies to those persons who profit in a pecuniary sense from the sale of intoxicating liquors. In other words, it applies to those engaged in the traffic of intoxicating liquor in a business way. Does it apply to a group such as the members of the Madison Onized Association, who band themselves together into an association devoted to recreation and welfare activities? When that association holds a social affair at which intoxicating liquors are dispensed to the members, is the association and the members liable under the Dram Shop Law? Does an owner of property, permitting its employees to hold a picnic on the grounds of the employer at which picnic, intoxicating liquors are dispensed to the employees by an association of employees or individual ...


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