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Hernandez v. Diaz

OPINION FILED SEPTEMBER 29, 1964.

JOHN HERNANDEZ, APPELLANT,

v.

DOMINGO DIAZ ET AL., APPELLEES.



APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, Judge, presiding. MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 23, 1964.

In September, 1956 while John Hernandez, the plaintiff, was seated in a Chicago bar, four intoxicated men unknown to him entered, purchased drinks, and became rowdy and offensive. John Brown, the guard hired by the tavern owner, asked the four intoxicated men to leave but instead they became threatening and the guard pulled out his revolver, and in the scuffle that followed a shot was fired by the guard which struck the plaintiff. The plaintiff filed a complaint in two counts; count I being under the Dram Shop Act and against the owners of the tavern and other taverns in which the four men had been drinking and count II being a common-law assault action against the tavern owner and the detective agency who employed the guard. The trial court dismissed count I and entered judgment for the defendants. On appeal to the Appellate Court, First District, the judgment was affirmed. (Hernandez v. Diaz, 45 Ill. App.2d 433.) This court granted leave to appeal.

This appeal presents two questions. First, did the 1955 amendments to the Liquor Control Act eliminate a cause of action by a person for his own injuries arising "in consequence of the intoxication * * * of any person"? Second, if such a cause of action was eliminated, did plaintiff state a cause of action for injuries "by any intoxicated person"?

The Appellate Court in its first opinion, unanimously held that when the 1955 legislature omitted the language "in consequence of", in new section 14 of article VI of the Liquor Control Act, (Ill. Rev. Stat. 1963, chap. 43, par. 135) where it speaks of the remedies of every person who shall be injured, the legislature deliberately eliminated the theory on which plaintiff relies. Upon rehearing the majority adhered to the opinion. They stated: "The `by' theory, in the face of statements to the effect that `proximate cause' is not required, has never been interpreted to go beyond a `direct affirmative tortious' act. The line has been and remains short of the facts of this case."

Here there is no contention that the guard was intoxicated and Judge Burke in dissenting said: "The actual damages need not be inflicted by the intoxicant in a `by' case. The cause of action can arise from an outside factor so long as plaintiff can prove causal connection between the intoxication and the injury."

The dissent reasoned that although the actual damage was inflicted by the guard firing the bullet, it did not necessarily follow that the plaintiff was not injured by an intoxicated person. As there was a chain of causal connection between the serving of liquor to the four men in the various bars, the ensuing fight, and the wounding of plaintiff, the dissent pointed out:

"The spirit and intention of the General Assembly to protect innocent parties from the acts of drunkards is clearly expressed. If plaintiff was supporting a wife and family at the time he was shot, there is no doubt that they could recover for the loss of support, for Sec. 135 states that an action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication of any person. It would be inconsistent to rule that a man's dependents can recover and that he, no matter how innocent cannot recover. The courts have consistently held that they will not interpret a statute so as to have absurd consequences result therefrom. Harding v. Albert, 373 Ill. 94."

The majority opinion of the Appellate Court denies the right of action to an innocent party injured in a tavern brawl unless he can prove he received his injury directly from an intoxicated person involved in the altercation.

The pertinent part of section 14 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. Stat. 1955, chap. 43, par. 135. (Emphasis added.)

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; * * * An action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, resulting as aforesaid. Such action shall be brought by and in the name of the person injured or the personal representative of the deceased person, as the case may be, from whom said support was furnished, * * *." Ill. Rev. Stat. 1963, chap. 43, par. 135. (Emphasis added.)

The Appellate Court on rehearing stated that it was unable to determine to its satisfaction why the legislature eliminated the "in consequence of" cause of action from application to the personal injury case. Neither can we determine with certainty the reasoning of the legislature in eliminating the language, "in consequence of", from the part of the act dealing with injuries to persons or property, and retaining it in the part dealing with injuries to means of support. It should be observed, however, that the 1955 amendments introduced for the first time a dichotomy into the act, separating the causes of action for injury to the person or property from those for injuries to loss of means of support. The most prevalent use of the "in consequence of" theory has been in support cases where the provider of the support was also the intoxicated person. The retention of the "in consequence" language in the loss-of-means-of-support part of the act was essential to avoid the elimination of the remedy of dependents of an intoxicated person. It does not necessarily follow that the language is essential to the cause of action asserted here.

We agree with the Appellate Court to the extent that we cannot reinstate by judicial fiat that which the legislature has consciously eliminated. However, we disagree with the majority opinion when it says that a ...


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