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Overocker v. Retoff

MARCH 6, 1968.

EDGAR OVEROCKER, PLAINTIFF-APPELLEE,

v.

MANLEY RETOFF, ET AL., D/B/A RETOFF'S TAVERN, AND MARY RETOFF, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of LaSalle County; the Hon. JOHN S. MASSIEON, Judge, presiding. Affirmed in part and reversed in part.

ALLOY, P.J.

Rehearing denied April 1, 1968.

The defendants, Manley Retoff, John Retoff, and Louis Retoff, d/b/a Retoff's Tavern, and Mary Retoff, appeal from a judgment of the Circuit Court of LaSalle County in favor of plaintiff Edgar Overocker, in the sum of $11,000 for injury to himself and in the sum of $2,000 for the loss of support for his four minor children. The action was brought by the plaintiff, Edgar Overocker, in two counts under the Illinois Dram Shop Act. In one count, plaintiff sought damages for personal injury, and in the other plaintiff sought damages for loss of means of support of his four minor children as a result of the injury sustained by plaintiff. The jury had returned a verdict of $11,000 for injuries under the first count and $5,000 for loss of support under the second count. The $5,000 amount was reduced to $2,000 by a remittitur which was the result of a denial of a motion for a new trial as to such count conditioned on plaintiff electing to remit $3,000 of the verdict returned under Count Two.

Plaintiff went to the tavern of defendants in the early evening of March 13, 1964. Around 8:00 p.m. he was watching a card game along the south wall of the tavern. An Earl King and a William Bradley were in the tavern at such time and there was evidence that they were intoxicated from drinking alcoholic liquors sold to them by defendants. These two men got into an argument and a scuffle resulted and both men went to the floor with King on top of Bradley. When they fell to the floor, plaintiff was about 15 feet away in the area of the card game. Plaintiff then walked over to the two men to help them or to break up the fight. There is a conflict in the evidence as to what ensued thereafter. There is evidence, however, that as plaintiff sought to pull King off Bradley, either King or plaintiff slipped and King fell across plaintiff's legs so that plaintiff sustained a broken hip. It is clear, however, that plaintiff was injured while attempting to break up a fight by two men who had become intoxicated in defendants' tavern. There is also evidence to the effect that one of the men fell upon plaintiff as a result of such activity.

The evidence disclosed also that plaintiff was a painter and, as a result of the accident, he was in the hospital for 42 days (sustaining a bill of $1,070.85); that he lost 29 weeks of work plus part of two more weeks (involving a total loss of earnings of $3,552.50); and that he likewise incurred a doctor bill of $210. Plaintiff was divorced from his wife and under the divorce decree he owed $40 a week child support for his four children which he was not able to pay while he recovered from his injury (involving a loss of about $1,280). It was also shown that since plaintiff had returned to work he was off an additional five days with muscle spasm which came as a result of the injury. There was testimony to the effect that his injury could result in loss of time in the future.

On appeal in this court, defendants contend that the evidence was insufficient to establish a cause of action and that the court should have directed a verdict for defendants; that the verdicts were against the manifest weight of the evidence; that the trial court improperly admitted certain evidence over the objection of defendants; and, that the damages awarded were excessive and the result of passion, prejudice and improper evidence. In connection with such contentions, defendants assert that the proof in the case fails to establish what is sometimes referred to as a "by" cause of action under the Illinois Dram Shop Act on the theory that to constitute such a cause of action it is necessary to show that the injury is the result of a direct affirmative act by the intoxicated person, and there must be a showing of a chain of causal connection between intoxication and injury to the plaintiff.

Under the Dram Shop Act in 1874, the statute provided for two separate and distinct causes of action. One was for the direct injury actually inflicted by an intoxicated person which was called the "by" cause of action. The other was for damages arising as a consequence of the intoxication, which was termed the "in consequence" cause of action (King v. Haley, 86 Ill. 106; Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708). In 1955 the Illinois Dram Shop Act (1965 Ill Rev Stats, c 43, par 135) was amended to provide that:

"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, severally or jointly, 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."

It is apparent from the language of the Act that the distinction between the two causes of action referred to was carried over into the 1955 statute.

A "by" cause of action under the Illinois Dram Shop Act is any action where a person, or his or her property or means of support are injured by the direct affirmative act of an intoxicated person (Hernandez v. Diaz, 31 Ill.2d 393, 202 N.E.2d 9). Other cases where plaintiff can show that as a consequence of someone's intoxication, he or she suffered injuries to their means of support is an "in consequence" type of action. A typical "in consequence" type of action involves a situation where the husband becomes intoxicated and, due to such intoxication, injures himself and thus causes injury to the means of support of his wife. Before the 1955 amendment, there may have been some significance to the distinction between the "by" cause of action and the "in consequence" cause of action by reason of the proof required in each type of action. Plaintiff was required to prove that the intoxication was a proximate cause of the injury when proceeding under the "in consequence" type of action, while this was not essential where the procedure was under a "by" cause of action (Hill v. Alexander, 321 Ill. App. 406, 53 N.E.2d 307; Cox v. Hrasky, 318 Ill. App. 287, 47 N.E.2d 728). Since in the "by" cause of action the injury to the person or property meant actual personal violence by the intoxicated person as against the person or property, it was assumed that the damage or injury resulted by reason of the intoxication upon proof of the damage or injury by the intoxicated person.

While we see no significance in the distinction between the "by" and "in consequence" cause of action in the instant case, for the purposes of our analysis we can consider the instant case to be a "by" cause of action. The reason therefor is that it was the direct act of two fighting and quarrelling intoxicated persons which caused the injury both to plaintiff and to the means of support for his four minor children. Since the courts of Illinois have enlarged the scope of recovery under the "by" causes of action, such plaintiff is also required to show a causal connection in such "by" causes of action (St. Clair v. Douvas, 21 Ill. App.2d 444, 158 N.E.2d 642). In the St. Clair v. Douvas case, at pages 452-453, the court stated:

"Under the Act two causes of action are given: one for an injury resulting from the direct affirmative act of an intoxicated person, and the other for an injury resulting `in consequence of the intoxication, habitual or otherwise.' Whiteside v. O'Connors, 162 Ill. App. 108; Hill v. Alexander, 321 Ill. App. 406. In any case where the injury is caused `by' or `in consequence' of the intoxication there must be shown a chain of causal connection, and in the case of an `in consequence' injury, since the case of Shugart v. Egan, 83 Ill. 56, the rule in Illinois had been that the plaintiff is required to prove the element of proximate or effective cause . . . It would be idle to speculate as to whether or not a more consistent result would not have been reached if the courts had held that there must be a causal connection between the selling of the intoxicating liquor and the acts resulting in the loss of support without bringing into the picture the technical and confusing interpretation of the legal meaning of proximate cause."

What the court was apparently saying is that in both the "by" and "in consequence" cases, there must still be shown "a chain of causal connection," while in the "in consequence" type of case there must be an additional showing of proximate ...


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