APPEAL from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Jo Daviess
County; the Hon. MARVIN F. BURT, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
The plaintiff, Mabel M. Graham, filed suit in the circuit court of Jo Daviess County for injuries allegedly sustained as the result of being struck by the automobile of an intoxicated driver, one Jack Schleicher. The defendants are engaged in the sale of alcoholic beverages in Galena; they allegedly sold Schleicher the liquor that caused his intoxication either in whole or in part. Although both the plaintiff and Schleicher are residents of Illinois, the automobile accident causing the plaintiff's injuries occurred in Wisconsin.
The plaintiff's amended complaint is in two counts. The first seeks recovery against the defendants under the Illinois Dram Shop Act (section 14 of the Liquor Control Act, Ill. Rev. Stat. 1965, ch. 43, par. 135); the second count alleges common-law negligence of the defendants in selling liquor to Schleicher when he was intoxicated. The trial court held that neither count stated a cause of action and accordingly dismissed the complaint.
On appeal the Appellate Court for the Second District affirmed the dismissal of the negligence count, on the ground that there is no common-law liability for selling or giving intoxicants to an able-bodied man. As to the count under the Dram Shop Act, however, the appellate court reversed the judgment of dismissal, holding that a good cause of action was stated. (97 Ill. App.2d 139.) The critical issue with respect to this count is whether the Illinois Dram Shop Act may be given extraterritorial effect, i.e., whether the Act permits recovery for injuries inflicted in another State by an intoxicated person who has procured liquor from defendants within Illinois. The appellate court decided the question in the affirmative; we granted leave to appeal from that decision.
The Illinois Dram Shop Act (Ill. Rev. Stat. 1967, ch. 43, par. 135) reads in pertinent part:
"Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part, of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors."
Although the Dram Shop Act was enacted nearly a hundred years ago (in 1871), no Illinois court of review prior to the case at bar has held that it has extraterritorial effect. On the contrary, our appellate courts have in the past consistently rejected the argument that the Act permits recovery for injuries sustained outside the State; this court has denied leave to appeal from such decisions. The first case so holding was a 1950 decision of the Appellate Court for the First District, in Eldridge v. Don Beachcomber, Inc., 342 Ill. App. 151. Subsequent cases are Butler v. Wittland, 18 Ill. App.2d 578 (Third District); Colligan v. Cousar, 38 Ill. App.2d 392 (First District); Liff v. Haezbroeck, 51 Ill. App.2d 70 (Third District); and Rubitsky v. Russo's Derby, Inc., 70 Ill. App.2d 482 (Second District). The rationale of these decisions is well expressed in Butler v. Wittland, 18 Ill. App. 2 d at pages 583-584:
"It is a well established principle that a statute has no extraterritorial force and is prima facie operative only as to persons or things within the jurisdiction of the state where such statute is enacted. * * *
"In the instant case, the defendants did not become liable by reason of the alleged sale of liquor to Munns and his resulting intoxication. Essential to defendants' liability under the Illinois Dramshop Act is the sustaining of an injury by plaintiffs as the result of Munns' intoxication. The occurrence constituting this necessary element of liability did not take place in Illinois but in Missouri where the statute under which recovery is sought has no force or effect. Plaintiffs argue that the sale of liquor to Munns and his intoxication occurred in Illinois and constituted a tortious act complete within this state actionable under the Liquor Control Act. This is in effect a contention that any intoxication creates a right of action. No Illinois authority for such proposition is cited and it appears to be in direct conflict with the rule followed by our courts as stated in the cases to which we have referred."
The doctrine of lex loci delicti has been extensively criticized, and the appellate court's opinion describes at length the recent propensity among legal commentators and some courts to replace it with a more flexible rule, i.e., the rule of "significant relationship" embodied in Tentative Draft No. 9 of § 379, Restatement of the Law, Second, Conflict of Laws (1964). Also known as the "center of gravity" rule, the proposed new Restatement of Conflicts, § 379, reads:
"(1) The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort.
"(2) Important contacts that the forum will consider in determining the state of most significant relationship include:
(a) the place where the injury occurred,
(b) the place where the conduct occurred,
(c) the domicile, nationality, place of incorporation and place of business ...