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Schneider v. Kirk

MAY 17, 1967.

MARY J. SCHNEIDER, ET AL., BY DAVID SCHNEIDER, THEIR GUARDIAN, PLAINTIFFS-APPELLEES,

v.

VERNON KIRK, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court, Fifteenth Judicial Circuit, of Stephenson County; the Hon. MARVIN F. BURT, Judge, presiding. Reversed and remanded for a new trial.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a dramshop action brought by David and Mary Schneider, husband and wife, and by David Schneider as guardian for their children, Keith and Kevin, for injuries suffered by all of said plaintiffs. The defendants were Vernon Kirk, the operator of a dramshop in Freeport, known as the Tropical Lounge, and Wesley, Augustus, Peter and Emma Stukenberg, the owners thereof. The defendants appealed to this court from a judgment entered against them and in favor of the plaintiffs on verdicts returned by the jury in the total sum of $27,000.

The plaintiffs' injuries were suffered in an automobile accident which took place the evening of December 24, 1963, at approximately 10:30 p.m. David Schneider, accompanied by his wife and four sons, was driving home after a Christmas Eve gathering with his wife's parents. As he was traveling east on a two-lane highway, an automobile driven by Edward Toepfer crossed over into his lane of traffic and struck his car. As a result, David Schneider and his family all suffered severe injuries, and his youngest son, age ten months, was killed.

A deputy sheriff, a state trooper, and a witness to the accident, testified, on behalf of the plaintiffs, that Toepfer was intoxicated at the time, and their opinions were based upon his appearance, actions and the odor of alcohol on his breath. It was conceded that Toepfer had been drinking prior to the accident.

The defendants offered evidence that Toepfer was at the Tropical Lounge from approximately 5:00 until 6:00 p.m., and had one or two beers during this period of time; that the Lounge closed about 6:00 p.m.; that Toepfer and his female companion then went to her parent's house where they remained until about 8:30 or 9:00 p.m., during which time they had nothing further to drink; that they then left to go to Savanna for dinner and en route stopped for a drink; and that they were again driving toward Savanna when the accident occurred. The defendants' proof relative to the amount and time of the drinking came primarily from Toepfer, his female companion, and the defendant Kirk. In contradiction of the defendants' evidence, two witnesses, who testified on behalf of the plaintiffs, stated that Toepfer was still drinking in the Lounge at 8:00 p.m. on the night in question.

The defendants contend that the trial court committed prejudicial error in permitting plaintiffs' counsel to ask certain questions during the voir dire examination of the jurors; in its evidentiary rulings; and in permitting plaintiffs' counsel to make certain improper and prejudicial statements in his closing argument.

During the voir dire examination, plaintiffs' counsel asked each of the jurors whether they would have any disagreement with a law which provides, that when a person is injured by the act of another who is under the influence of intoxicating liquor, that the injured party may recover against the proprietor of the tavern who sold the liquor which caused the intoxication, in whole or in part. The defendants complain that the repetition of this question constituted error in that this statement did not advise the jurors that the intoxication must have been a cause or factor contributing to the injury.

We do not believe that the trial court committed error in this respect. This was a cause of action wherein the plaintiffs sought damages for injuries caused "by" an intoxicated person. In such case, even the defendants concede that the doctrine of proximate or effective causation has no relevancy. Hocker v. O'Klock, 16 Ill. App.2d 414, 418, 158 N.E.2d 7 (1958); Cope v. Gepford, 326 Ill. App. 171, 181, 182, 61 N.E.2d 394 (1945).

In a "by" cause of action, the plaintiff is only required to prove that the injuries resulted from the direct affirmative act of an intoxicated person. If an intoxicated person were operating an elevator, which fell solely by reason of a faulty cable mechanism, any attendant injuries to passengers would not result from the act of an intoxicated person and there would be no causal relation between the intoxication and the injury. In such case, no liability would arise under the Dram Shop Act. If, however, there is a direct causal relation between the act committed by an intoxicated person and the injury to another, the injury is caused "by" the intoxicated person. Hernandez v. Diaz, 31 Ill.2d 393, 399, 202 N.E.2d 9 (1964).

In Diaz, the plaintiff was shot by a guard, who was employed by the tavern, while the guard was scuffling with and trying to remove several intoxicated persons from the premises. The Supreme Court, in holding that such facts established a "by" cause of action under the Dram Shop Act, stated that the direct affirmative act of the intoxicated person need not be performed on or done to the person injured. All that need be shown in a "by" cause of action is that the affirmative act of the intoxicated person had a causal connection with the injuries sustained by the plaintiff; and a chain of causal connection between the intoxication and the injury is all that is required. Hernandez v. Diaz, ibid., 398, 399.

The statements made by plaintiffs' counsel during the voir dire examination were not misleading in this regard. He asked the prospective jurors if they had any quarrel with a law which provided that one "who is injured by the act" of an intoxicated person may recover. Furthermore, there was no issue in the case on the question of whether it was Toepfer's direct affirmative act which caused the injuries to the plaintiffs. There was no claim that a tire had failed or no assertion of any other mechanical insufficiency in the car itself, or that something other than the act of Toepfer led to the injuries. The issue presented to the jury was that of intoxication and whether the defendants caused it, in whole or in part.

The defendants also suggest that plaintiffs' repetition of the dramshop question to each juror was error in that it constituted an examination, directly or indirectly, concerning matters of law contrary to the direction of Supreme Court Rule 24-1 (present Supreme Court Rule 234). This Rule was designed to limit or eliminate the extended voir dire examinations so prevalent before its adoption. However, it was not intended to prevent counsel from making pertinent inquiries to determine whether a juror might be prejudiced or biased, or to preclude counsel from intelligently exercising his right of challenge for sufficient cause or peremptorily. The People v. Lobb, 17 Ill.2d 287, 300, 161 N.E.2d 325 (1959).

It is highly conceivable, as indicated by the responses of certain of the prospective jurors in the case at bar, that many persons among any group of potential jurors may believe that a law permitting recovery against an operator or owner of a dramshop is not just. The Dram Shop Act (Ill Rev Stats 1965, c 43, par 135) expresses a statutory philosophy which many laymen may find unacceptable. It was not a tort at common law either to give or sell liquor to an able-bodied person and, generally, negligence is not a factor in the application of this statutory remedy. However, a form of the doctrine of contributory negligence has been grafted onto the Dram Shop Act by Judicial construction under such terms as "complicity," "participation," or the concept of not being an "innocent suitor." Osinger v. Christian, 43 Ill. App.2d 480, 484, 485, 193 N.E.2d 872 (1963); Douglas v. Athens Market Corp., 320 Ill. App. 40, 50, 49 N.E.2d 834 (1943); Forsberg v. Around Town Club, Inc., 316 Ill. App. 661, 666, 45 N.E.2d 513 (1942).

Consequently, in such cases, a litigant may not be adequately protected by a statement from prospective jurors that they will follow the law as given to them by the court, unless the party is first certain that each juror is generally aware of what law governs the action. The importance of permitting sufficient inquiry to ...


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