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Meade v. Boggiano

JULY 22, 1970.

ALBERTA MEADE, ADMINISTRATOR OF THE ESTATE OF LEE TYDUS, DECEASED, INDIVIDUALLY AND FOR THE SOLE USE AND BENEFIT OF FRAZIER ZELLA TYDUS, FRAZIER TYDUS AND CHARLES LEE TYDUS, PLAINTIFF-APPELLANT,

v.

J. BOGGIANO AND A. PODESTA, DEFENDANTS-APPELLEES, AND LOUIS BOGGIANO AND ERNEST YOUNG, DEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. BEN SCHWARTZ, Judge, presiding. Reversed and remanded.

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

Plaintiff Alberta Meade, Administrator of the Estate of Lee Tydus, deceased, appeals from an order dismissing her complaint as to defendants A. Podesta and J. Boggiano.

The facts alleged in the complaint are that plaintiff's decedent, Lee Tydus, had been an employee of Paul Gliege, owner, and operator of the dramshop known as the Lake Inn, and that legal title to the premises upon which the dramshop was situated rested in defendants Louis Boggiano, J. Boggiano and A. Podesta.

On August 2, 1966, the decedent was lawfully on the premises in the course of his employment when defendant Ernest Young was sold or given alcoholic liquors by employees of the dramshop which Young consumed rendering him intoxicated. As a consequence of his intoxication, Young stabbed decedent who sustained fatal injuries.

On March 2, 1967, the plaintiff filed an Application for Adjustment of Claim with the Illinois Industrial Commission and thereafter a settlement in the amount of $9,500 was approved thereby terminating the cause.

Plaintiff then filed the complaint in the instant cause on August 1, 1967. The complaint consisted of four counts. The first and second counts were directed against the landlords Louis Boggiano, J. Boggiano and A. Podesta for damages under the Dram Shop Act (Ill Rev Stats 1965, c 43, § 135). *fn1 The third and fourth counts were directed against the assailant Young and, as such, are of no concern to the resolution of this appeal.

Defendants J. Boggiano and A. Podesta, moved to dismiss the complaint contending that plaintiff was without remedy under the Dram Shop Act and that the complaint was defective on its face for the following reasons:

1. The complaint alleges decedent's lawful presence on the premises in the course of his employment.

2. The Dram Shop Act does not provide a remedy for an employee or next of kin of an employee of a dramshop as against the owner of the premises.

3. Plaintiff has made an election of remedy in filing an Application for an Adjustment of Claim with the Illinois Industrial Commission and obtaining a settlement.

The trial court sustained the motion, dismissing the complaint and the cause of action as to defendants J. Boggiano and A. Podesta. *fn2

OPINION

The plaintiff contends that the trial court erred in dismissing the complaint as to the defendants-appellees for the following reasons:

1. Dependents of an employee of a tavern have an action under the Dram Shop Act for loss of support ...


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