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Duda v. Haberman

FEBRUARY 14, 1975.

SHARON ANN DUDA, ADM'R OF THE ESTATE OF DAVID W. DUDA, ET AL., PLAINTIFFS-APPELLEES,

v.

FRANK HABERMAN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED E. WOODWARD, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The instant action was brought by Sharon Ann Duda, individually and as administrator of the estate of David W. Duda, under the provisions of the dramshop act of Illinois (Ill. Rev. Stat. 1967, ch. 43, § 135). The action was originally brought against several defendants. The case was tried before a jury and at the conclusion of the plaintiffs' case a directed verdict was entered as to the defendants other than Frank Haberman and James Haberman, d/b/a Venard's. The jury returned a verdict in favor of the plaintiffs in the total sum of $66,500. Upon motion by the defendants, the trial court reduced the judgment to the sum of $20,000, being the maximum allowable under the provisions of the dramshop act.

On the night of June 14, 1969, David Duda was in Venard's tavern in Westmont, Illinois, with a number of friends, including his wife and sister-in-law, one Ronald Dietschweiler, and one Thomas Mottlow, among others. Dietschweiler had apparently come to the tavern at approximately 8:30 in the evening, and later that evening Dietschweiler drove Mottlow to his place of residence, accompanied by Duda. They returned to Venard's tavern and remained there until either 12 or approximately 2 A.M., there being a conflict in the testimony as to the time Dietschweiler and Duda left the tavern. During the course of the evening Dietschweiler consumed alcoholic beverages in Venard's tavern. Dietschweiler, accompanied by Duda, then drove his 1969 Cadillac to another tavern called The Blue Front. Dietschweiler and Duda entered the tavern and after a period of time were asked to leave. They then drove to Lemont where they entered an unnamed tavern and were refused service. It may be safely assumed that they were refused service because of their intoxicated condition. Duda then walked to another tavern while Dietschweiler remained in the car. Upon Duda's return Dietschweiler then drove towards Westmont. He apparently fell asleep, drove off of the road, struck a culvert and both he and Duda were injured, Duda being so severely injured that he died shortly thereafter.

• 1 At the outset it is to be noted that this is a "by" action brought under the provisions of the dramshop act of Illinois. As has been repeatedly stated, there are two types of actions possible under the provisions of this act, one known as a "by" action and the other known as an action "in consequence of the intoxication." The courts of Illinois have rather clearly defined this distinction between the two types of action and the degree of proof necessary in either one. In Cope v. Gepford (1945), 326 Ill. App. 171, 176, 61 N.E.2d 394, 396, the court there pointed out the distinction:

"It will be noted that the act affords a right of action to one injured in person or property or means of support (1) `by any intoxicated person,' or (2) `in consequence of the intoxication, habitual or otherwise, of any person.' In the first instance the action is for a direct injury inflicted by an `intoxicated person,' and in the second instance it is for such injury as may be suffered `in consequence of intoxication' of any person."

The court then went on to state that the case considered by them therein was an "in consequence" case and that it was incumbent upon the plaintiff to prove that the intoxication was the proximate cause of the injury. In Danhof v. Osborne (1957), 11 Ill.2d 77, 142 N.E.2d 20, the supreme court considered the same issue and in that case, which was an "in consequence" type of case, the court stated that it was incumbent upon the plaintiff to prove that the intoxication of the plaintiff's husband was the proximate cause of the injury. Somewhat in summation, the supreme court, in Hernandez v. Diaz (1964), 31 Ill.2d 393, 397, 202 N.E.2d 9, 12, made the following statement in citing St. Clair v. Douvas (1959), 21 Ill. App.2d 444, 452, 158 N.E.2d 642, 647:

"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.'"

The court succinctly stated that:

"What is required under the theory of a `by' action is that the direct affirmative act of an intoxicated person must have a causal connection with the injuries sustained by the plaintiff." 31 Ill.2d 393, 398, 202 N.E.2d 9, 12.

• 2 In the case before us there is no argument but that the intoxication of Ronald Dietschweiler, the driver of the car, had a direct causal connection with the death of the plaintiffs' decedent, David Duda. We find that this is not a "by" type of action under the dramshop act and plaintiff must prove a causal connection between the intoxication and the injuries resulting in the death of plaintiffs' decedent.

In the appeal before us the defendants contend (1) that the plaintiffs failed to establish a prima facie case; (2) that the verdict was against the manifest weight of the evidence; (3) that the trial court improperly restricted cross-examination of plaintiffs' witness which constituted prejudicial reversible error; (4) that the attorney for the plaintiffs made prejudicial remarks during final argument which constituted reversible error; and (5) that the award to the plaintiffs of $20,000 was excessive.

• 3 Turning to the first contention of the defendants, the gist of the argument presented is that the accident was caused by Dietschweiler falling asleep and that the plaintiffs failed to prove that the intoxication of Dietschweiler was the cause of his falling asleep. This is a somewhat novel argument and is contrary to common knowledge. In the case of Weisguth v. Stack (1911), 165 Ill. App. 462, 465, the court there considered a case where plaintiff's husband became intoxicated in a tavern, fell asleep in the back room of the saloon and was robbed of $85. The case was tried by a jury, and the court made the following interesting observation:

"[O]n the other hand the jury were justified in finding, as they must have, that the money would not have been taken from Weisguth had he not been in a drunken ...


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