Appeal from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding. Affirmed.
Rehearing denied January 4, 1965.
This is a dramshop case which was tried to verdict in the Circuit Court of Macon County. The jury awarded Plaintiff, Mildred Valentine, $15,000 for personal injuries sustained by her in an automobile collision. Defendants, Sycle & Keefe, Inc., d/b/a "National Wine & Liquor Stores," and Charles Davis, d/b/a "The Senate," were charged with serving alcoholic liquor to and causing the intoxication of the driver of an automobile which collided with the vehicle in which Plaintiff was riding. It is agreed that Plaintiff sustained serious personal injuries and that the jury verdict was the maximum permitted under the statute (Ill Rev Stats c 43, § 135 (1961)).
This case brings us fairly to grips with one of the perplexing and uncharted courses of procedure which has confronted our Bench and Bar. In this case a claim was also made against the intoxicated person and Plaintiff's own driver under the common-law action. Plaintiff sought $100,000 in damages from these two defendants as well as $15,000 from the dramshop Defendants. Just before the case was called for trial a settlement conference produced offers of $20,500 on the basis of covenants not to sue from the common-law defendants and the claims against them were dismissed without prejudice. After the verdict, the dramshop defendants, Sycle & Keefe, Inc., (hereinafter referred to as Defendant), claimed that the offers of $20,500 were in fact settlement agreements and that they were entitled to have the judgment reduced by the amount of the agreements. Defendant also contended that the verdict of $15,000 fixed the totality of plaintiff's damages and that since she had recovered an amount in excess of this under her common-law action, she could not recover from them in any event. Appropriate post-trial relief was requested and hearings were held.
The trial court held that the negotiations with the common-law defendants did not constitute a settlement agreement, but rather, consisted of offers only and that no consideration was received by Plaintiff. The court further held that the verdict did not fix Plaintiff's total damages, that the judgment had not been satisfied and that Defendant was seeking to take refuge from its liability to Plaintiff as determined by the jury for its part of her total injury.
In the view we take of this problem, it is not necessary for us to decide whether or not there was an executed settlement agreement in the nature of a covenant not to sue. There is reason and need for a means whereby a litigant may deal with dramshop and common-law defendants together and separately, and make such compromise of either claim in such order as will facilitate the compromise and settlement of disputes within the limits of the remedies conferred by the common law or the statutes and according to the public policy of this state. This court is aware of the artificial atmosphere prevailing in this type of case resulting solely from the limitation of recovery under the statute and the willingness of the dramshop carriers to take refuge in the sophistry of the argument they present to this court.
Defendant's contention that it is entitled to satisfaction of the judgment by reason of the settlement must be sustained if the verdict of the jury fixed Plaintiff's total damages. Burger v. Van Severen, 39 Ill. App.2d 205, 188 N.E.2d 373; De Lude v. Rimek, 351 Ill. App. 466, 115 N.E.2d 561, but cannot be sustained if the verdict is not representative of Plaintiff's true loss. Slone v. Morton, 39 Ill. App.2d 495, 188 N.E.2d 493.
There is no question that Plaintiff had a right to submit to the jury a claim for the maximum award allowed her under her dramshop remedy. It was not her duty to inform the court of the covenant not to sue, if such an agreement was reached, nor was it her obligation to prove her total loss. As the pleadings stood when the cause was submitted to the jury, there was no indication so far as the record was concerned that Defendant questioned the right of Plaintiff to recover $15,000 from it. There was no pleading to show that a covenant not to sue had been executed. There was no request for mitigation, satisfaction or extinction of the claim and there was no request for the jury to fix Plaintiff's total damages. We see no reason to expect Plaintiff to undertake such action. Plaintiff had a right to bring a suit for $15,000 against the dramshop defendants and had no duty to raise any issue to establish an affirmative defense for dramshop defendants.
In Slone v. Morton, 39 Ill. App.2d 495, 188 N.E.2d 493, by motion for summary judgment the defendant set up payment by the common-law defendants of a sum in excess of the dramshop limitation as a defense. Thus to state a cause of action, the plaintiff was obliged to plead that his total damage exceeded the dramshop limit. However, it should be noted that there the defendant, who sought to take advantage of the limitation, caused issues to be drawn which would require an adjudication of the plaintiff's total damages.
In the instant case, Defendant's claim for satisfaction, mitigation or extinction of its liability was first raised in a petition to file an affirmative defense after the verdict. The record shows no action or attempt by defendant to apprise the trial court of the claimed settlement agreement before the issues were submitted to a jury. It is apparent to us that at the time of defendant's post-trial procedure, the defendant recognized that the burden of showing Plaintiff's total loss was upon it. However, prior to verdict it took no action to demonstrate to the trial court that the total loss was $15,000. Rather, it asked the court after verdict to hold that plaintiff was obliged to prove that her total loss exceeded the sum of $15,000 even though no such issue was raised by the pleadings prior to verdict.
The question must be asked, "For whose benefit would such a finding be made?" If Plaintiff has in fact entered into a covenant not to sue, the common-law defendants would have no interest in determining Plaintiff's total damage. Plaintiff has no need to establish total damages because defendant had not previously challenged her right to recover $15,000 from it. Only defendant may profit by an adjudication of total damages; thus it hardly seems reasonable to cast upon plaintiff the burden of establishing the essential element of defendant's affirmative defense.
Such a procedure is not contemplated by the Civil Practice Act, (Ill Rev Stats, c 110, § 43(4) (1963)) provides:
"The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of non-delivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply."
Had the command of the statute been followed, and had defendant alleged the payment of a sum in excess of the permissible recovery under the Dram Shop Act, and the bar of the action, then ...