APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from summary judgment for defendant in a suit grounded on the Dram Shop Act, (Ill. Rev. Stat. 1969, ch. 143 par. 135), seeking recovery for property damage and for loss of support by dependents of plaintiff's decedent. In entering judgment, the trial court found there was no direct sale within the meaning of the Act.
Decedent was a member of Plumbers Local Union No. 93. On July 18, 1970, he attended a union picnic at Daniel Wright Woods in Lake County and drank beer causing his intoxication. The beer had been sold by defendant in a large quantity and transported that day to the picnic ground in half barrels on a truck or van with facilities for cooling, tapping and dispensing. Defendant's employees did not serve the beer to individuals, but did tap open the first two half-barrels, leaving the truck with its contents upon the grounds until the end of the day when they removed it. Defendant was involved in an auto collision that day which caused his death, allegedly as a result of his intoxication.
• 1, 2 The purpose of a summary judgment procedure is not to try an issue of fact, but rather to determine if one exists. (Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App.2d 412, 416, 199 N.E.2d 300.) The judgment below can be affirmed only if the complaint, considered together with affidavits and exhibits in the record, indicate that plaintiff has failed to allege facts sufficient to state a cause of action within the provisions of the Dram Shop Act.
One question in dispute is this: To whom did defendant sell eight half-barrels of beer? An affidavit of its president states the sale was made to the local union and an attached sales slip of defendant corporation so indicates. The complaint, however, alleges the sale was to members of the union, and supporting affidavits by the secretary-treasurer and entertainment committee chairman of the local union indicate the beer was paid for, not from union dues or other official funds, but from a separate fund collected from members as fines for non-attendance at regular meetings and used exclusively for entertainment of the members.
A further question, and the central issue, is this: if the seller of intoxicating liquor in bulk comes within the scope of the Dram Shop Act, for whose intoxication is the seller liable? Only that of persons purchasing directly, personally, and individually from the bulk seller?
The complaint alleged defendant sold the beer to members of the union for use at a union picnic and knew, or had reasonable grounds to know, it would be consumed by union members at the picnic, that decedent was a union member, and that he attended the picnic where he drank the beer sold by defendant. Affidavit of the president of defendant corporation states that neither affiant nor any agent or employee of defendant had any knowledge as to who would consume the beer and did not know decedent personally or that he was a union member. Affidavit of the chairman of the union members' entertainment committee, however, states he ordered eight half-barrels of beer from defendant, informed defendant's representative on the phone that it was being purchased for the members' picnic and was to be delivered to Daniel Wright Woods on July 18, 1970, that it was to be delivered in a truck containing a cooler which kept the beer chilled, and that he requested defendant to send the bill for payment to the union office.
In support of the position that plaintiff's claim must fail because the sale was not made directly to decedent, defendant cites Blackwell v. Fernandez (1945), 324 Ill. App. 597, 59 N.E.2d 342 holding that the Dram Shop Act did not apply where liquor purchased in a tavern was given by the purchaser after leaving the premises, to his roommate who became intoxicated; and similarly in Stinson v. Edlen (1960), 27 Ill. App.2d 425, 169 N.E.2d 682 where 24 cans of beer were purchased from a common fund but the intoxicated person remained at his place of employment while two others drove to defendant's tavern and one went inside to make the purchase. In McCoy v. Spalding (1963), 41 Ill. App.2d 292, 190 N.E.2d 483 the court refused to hold defendant liable for a shooting by a person who became intoxicated after consuming liquor purchased by his compainion; and it was held in Rittmeyer v. Anderson (1964), 49 Ill. App.2d 71, 199 N.E.2d 463 a complaint alleging sale of a "pony keg" of beer, about four gallons, purchased by a single individual with funds contributed by prospective party participants and resulting in intoxication and self-inflicted death of another, did not state a cause of action under the Dram Shop Act. Although the complaint alleged defendant knew or reasonably should have known of the purchaser's intent to furnish the beer to other persons, the court said the pleading did not allege a direct sale nor that decedent was present with the buyer upon defendant's premises at the time of the purchase.
Varying circumstances, however, have produced contrary views in other cases. In Bennett v. Auditorium Bldg. Corp. (1939), 299 Ill. App. 139, 19 N.E.2d 626 it was contended that alcoholic liquor served to a woman did not constitute a sale because the drinks were paid for by her escort, but this view was rejected and the court held it amounted to a sale to the person served. A tavern keeper was not relieved of liability where liquor was sold to companions and consumed by a fourteen year old youth who became intoxicated, as the sale was made in the presence of the minor when the defendant allegedly knew or had reasonable grounds to believe he would drink all or part of the liquor. Bell v. Poindexter (1949), 363 Ill. App. 541, 84 N.E.2d 646.
Although the cases cited above are somewhat analogous, no closely factual Illinois decision has come to our attention and we look for direction to the aim and boundaries of liability under the Illinois statute.
The clearest limitation upon the liability created by the Dram Shop Act was its early judicial restriction to persons engaged in the liquor traffic for the purpose of pecuniary gain. (Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73.) Although Miller v. Owens-Ill. Glass Co., supra, also involved a picnic for members of a group (employees), none of the defendants (the employer upon whose premises the picnic was held, an employees' association, and individual employees) were engaged in the liquor business for profit, and it was consequently held the complaint was properly dismissed.
• 3, 4 The purpose of the Act is to place the burden of the evils of the liquor traffic on those who profit therefrom. (Tresch v. Nielsen (1965), 57 Ill. App.2d 469, 207 N.E.2d 109.) The act embraces both regulation of the liquor traffic and redress for injury. Graham v. General U.S. Grant Post No. 2665 (1968), 97 Ill. App.2d 139, 239 N.E.2d 856.
A reading of the many and varied Dram Shop cases in Illinois discloses a considerable variance in the approach of the courts to the problem. Numerous cases state that the Act should be "liberally construed." On the other hand, other courts have frequently observed that the Act is penal in character and should be strictly construed. The latter view was adopted by the court in Rittmeyer, supra. Shortly thereafter the Illinois Supreme Court in Hernandez v. Diaz (1964), 31 Ill.2d 393, 399, 202 N.E.2d 9 made the general statement:
"* * * that the act shall be liberally construed to the end that the health, safety and welfare of the people of the State ...