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Tresch v. Nielsen

APRIL 7, 1965.

MICHAEL TRESCH, PLAINTIFF-APPELLANT,

v.

HANS NIELSEN, D/B/A NIELSEN'S RESTAURANT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. GEORGE L. QUILICI, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. This action was brought by Michael Tresch as plaintiff under Section 135 of Chapter 43 of Ill Rev Stats 1963, commonly known as the Dram Shop Act. The defendant was Hans Nielsen, doing business as Nielsen's Restaurant. It was alleged that one John Sobut had become intoxicated as a result of alcoholic liquors sold or given to him by the defendant and consumed at the latter's place of business. It was further alleged that as a result of such intoxication Sobut assaulted the plaintiff and caused injury to him.

The case was tried by the court with a jury, and the jury returned a verdict against the plaintiff and in favor of the defendant. Judgment was entered on the verdict and the trial court overruled the post-trial motion of the plaintiff, and this appeal followed.

The testimony is in sharp conflict, both as to the intoxication of Sobut and as to whether the defendant was in any way responsible for such intoxication, if Sobut was intoxicated. There is also sharp conflict in the evidence as to what occurred at the time of the alleged assault. The plaintiff in this court urges that he is entitled to a new trial because of errors in the trial court; to wit:

1) That the court erred in instructing the jury that if it found the plaintiff in any way provoked the assault he could not recover;

2) That the court erred in admitting evidence of a covenant not to sue given by plaintiff to John Sobut, who had been a party-defendant to the case but was dismissed prior to trial;

3) That the court erred in refusing to allow the plaintiff (who had called Sobut as a witness) to examine Sobut as the court's witness or to properly arouse his conscience or bring before the jury evidence of Sobut's altered testimony when it appeared that he had made a pre-trial statement in the presence of his attorney which was transcribed and which differed materially from the statements made by him on the witness stand.

Count I of the complaint was, as we have pointed out, based upon the Dram Shop Act. The purpose of that Act is to place the burden of the evils of the liquor traffic on those who profit therefrom. Under the Illinois Statute, liability is imposed upon the defendant without the necessity of proving fault. All that is necessary is to show that the defendant dramshop keeper sold or gave alcoholic beverages which contributed to the intoxication, and that the injury was caused by such intoxication. William J. Voelker, Jr., Parties to Dram Shop actions, Ill L Forum Vol 1958, p 207; John A. Appleman, Civil Liability under the Illinois Dramshop Act, 34 Ill L Rev p 30.

In the complaint the plaintiff improperly (since the action is not predicated on negligence) pleaded that the plaintiff at the time of the occurrence was exercising due care. That allegation should be treated as surplusage. Osinger v. Christian, 43 Ill. App.2d 480, 193 N.E.2d 872.

It has also been held that in an action brought for a direct injury inflicted by an intoxicated person the doctrine of proximate cause has no application. Haw v. 1933 Grill, Inc., 297 Ill. App. 37, 17 N.E.2d 70; Martin v. Blackburn, 312 Ill. App. 549, 38 N.E.2d 939.

Hernandez v. Diaz, 31 Ill.2d 393, 202 N.E.2d 9, was an action brought under the Dram Shop Act. The court discussed the Liquor Control Act as amended in 1955, and said:

". . . If an intoxicated person commits an act which has a direct causal relation to the injury of another, the injury is caused `by' the intoxicated person. . . .

"The statute was designed to give a substantial remedy and should be allowed to have effect according to its natural and plain meaning. Section 1 of article I of the Liquor Control Act states that the 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. Ill Rev Stats 1963, chap 43, par 94."

[5-7] In the instant case the trial court, over the objection of the plaintiff, gave the following instruction to the jury:

"The jury are instructed that if you find from the evidence that the plaintiff, MICHAEL TRESCH, in any way provoked the incidents which led to his ...


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