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Wendt v. Richter

JANUARY 16, 1974.

ETHEL WENDT, INDIVIDUALLY AND AS ADM'RX OF THE ESTATE OF CARL ROBERT WENDT, PLAINTIFF-APPELLANT,

v.

GERALDINE RICHTER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND T. BERG, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Cook County sustaining a motion for summary judgment.

The only issue presented on appeal is whether the trial court erred in allowing the defendant's motion for summary judgment.

On January 25, 1968, the plaintiff, Ethel Wendt, as administratrix of her deceased husband's estate, filed an action under Ill. Rev. Stat. 1971, ch. 43, § 135, commonly known as the Dram Shop Act, against Henrietta Meyers, doing business as Elm Inn, as the operator of the dram shop, and the Lakeview Trust and Savings Bank under Trust No. 2348, as the owner of the dram shop premises. The complaint alleged the plaintiff's husband, Carl R. Wendt, fell down certain stairs and died after becoming intoxicated from consuming alcoholic liquor which was sold to him at the dram shop. A motion for summary judgment was filed by the Lakeview Trust and Savings Bank, alleging it was merely a land trustee and the beneficial interest of the trust in question was held by Geraldine Richter. On April 17, 1968, the plaintiff obtained leave of court to file an amended complaint adding the beneficiary of the land trust, Geraldine Richter, as an additional defendant. On April 18, 1968, the defendant, Geraldine Richter, filed her answer to the amended complaint, wherein she admitted ownership of the dram shop premises. On April 19, 1972, the case was assigned for trial. A mistrial was ordered on April 20, 1972. On June 13, 1972, the case was reassigned for trial. On August 15, 1972, over four years after filing her answer in which she admitted ownership, the defendant filed a motion for summary judgment, alleging for the first time that she held only naked legal title of the dram shop premises in question, pursuant to articles of agreement for warranty deed which had been entered into between the defendant as contract-seller and Henrietta Meyers as contract-purchaser. The trial judge allowed the defendant's motion for summary judgment in favor of defendant and dismissed her from the lawsuit. It is from that order the plaintiff prosecutes this appeal.

The plaintiff contends the trial court erred in allowing the defendant's motion for summary judgment. Plaintiff argues the defendant, as contract-seller under the articles of agreement for warranty deed, was much more than a naked legal titleholder and therefore an "owner" under the provisions of the Dram Shop Act.

The defendant contends she must be considered as merely a "naked legal titleholder" and not as an "owner" under the Dram Shop Act. The defendant bases her contention on the decision in Robinson v. Walker (1965), 63 Ill. App.2d 204, wherein the appellate court held that a land trustee, who held mere "naked" title to realty on which two taverns were located, and who had no right to exercise any control over use of such realty for sale of intoxicating liquors, was not an "owner" within the meaning of the Dram Shop Act. The defendant argues that even though she was a beneficiary owner under a land trust, she conveyed the property in question under a contract for warranty deed which created an entirely separate and distinct transaction. The defendant claims that as contract-seller she assumed the position of a trustee within the scope of the Robinson decision and the contract-purchaser became the equitable owner of the property.

• 1-3 We believe the defendant was the owner of the premises in question and incurred liability under the Dram Shop Act. In Illinois there is no uniform meaning to the term "owner," and consideration must be given to the nature and purpose of the statute involved. (Woodward Governor Co. v. City of Loves Park (1948), 335 Ill. App. 528.) It is necessary, therefore, to consider the purpose of the Dram Shop Act. In Osinger v. Christian (1963), 43 Ill. App.2d 480, the appellate court stated:

"The Dramshop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for the evils and dangers which flow from such traffic."

In the case at bar, the defendant, under the articles of agreement for warranty deed, retained sufficient control of the premises in question to classify her as an owner. The purpose of the Dram Shop Act would be served by imposing liability upon the defendant as said owner. Paragraph four of the articles of agreement prohibited the purchaser from transferring or assigning any interest in the agreement, or subletting or leasing the premises, without the written consent of the defendant. Paragraph five of the agreement provided that no right, title or interest, legal or equitable, would vest in the purchaser until the defendant delivered the deed. No such delivery was made. The defendant was the beneficiary of a land trust and, as such, was the equitable owner of the dram shop premises. The articles of agreement for warranty deed vested no title, legal or equitable, in the purchaser until delivery of the deed. The defendant, therefore, did not divest herself of her equitable title by entering into the agreement. The defendant retained sufficient control of the premises in question to be held liable as an "owner" under the Dram Shop Act. Holding the defendant liable will provide "discipline of traffic in liquor" and will serve the purpose of the Dram Shop Act.

Furthermore, defendant waited over four years from the filing of the lawsuit before she disclosed the articles of agreement with Henrietta Meyers, who was operating the tavern all that time. During the pendency of this lawsuit Meyers settled her case as operator. Now Richter suddenly claims Meyers is the owner and, of course, Meyers having settled previously, the claim against the owner, if Meyers is held to be the owner, would be disposed of by such settlement. We consider the tactics employed here to be most unfair on the part of Richter and Meyers and will not condone such actions.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed.

Reversed.

JOHNSON, J., concurs.

Mr. JUSTICE BURMAN ...


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