APPEAL from the Circuit Court of Bureau County; the Hon. C.
HOWARD WAMPLER, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 12, 1978.
This is an appeal by John Merritt, the plaintiff, from orders entered by the circuit court of Bureau County granting summary judgments in a dramshop action to the defendants, Walter Chonowski, d/b/a Circus Lounge, and William Willits, d/b/a Lucky Tap.
On the evening of November 2, 1974, due to arrangements made by the plaintiff, he met Ed Zubosky and Dale R. Spelich at a Mr. Quick's restaurant. Zubosky was home from military service and an evening of socializing was planned. After leaving the restaurant with Spelich providing the transportation, the trio went to a tavern known as Lucky Tap located in Arlington, Illinois, and owned by the defendant Willits. At the Lucky Tap the three men consumed three or four glasses of beer, each buying their own. Upon leaving this place of business each man purchased an eight-pack of beer which they drank at a drive-in movie. At approximately 11:30 p.m. they left the drive-in and went to a tavern known as the Circus Lounge owned by the defendant Chonowski in Spring Valley, Illinois. At this establishment the only one of the trio to gain entrance was Spelich, the driver of the vehicle which provided their transportation. The plaintiff was denied admission because of his age and Zubosky remained in the car. When Spelich exited the Circus Lounge he was angry and informed the plaintiff that he had consumed six mixed drinks which were quite strong. Upon leaving Spring Valley for the purpose of returning home, Spelich continued to drive the motor vehicle as he had done all evening. An accident occurred in which the plaintiff was injured.
Spelich subsequent to the accident had no memory of any events after going to the drive-in theater. He had no memory of being in Spring Valley or in the Circus Lounge.
The plaintiff filed a dramshop action against both defendants. Motions for summary judgment were filed by both defendants and a hearing on these motions was had on October 28, 1976. On November 1, 1976, the trial court granted the defendant Lucky Tap's motion for summary judgment on the grounds of complicity on the part of the plaintiff. On November 3, 1976, the motion for summary judgment filed by the defendant Circus Lounge was granted on both the grounds of complicity and on the lack of proof of consumption of alcohol on the part of Spelich, the alleged intoxicated person.
The plaintiff in this appeal raises several issues, the first of which is that the defense of complicity in dramshop actions is unconstitutional.
In addressing ourselves to this issue we note that the plaintiff labels "complicity" as a substantive defense which deprives the plaintiff of due process of law and that such defense was created by the judicial system which has invaded and preempted an area which is entirely within the scope of our legislature. The plaintiff further equates "complicity" with "contributory negligence." The law is well settled that contributory negligence presupposes an action based on negligence and no issue of negligence is involved in a dramshop action. Nelson v. Araiza (1978), 69 Ill.2d 534, 372 N.E.2d 637; Overocker v. Retoff (1968), 93 Ill. App.2d 11, 234 N.E.2d 820.
1 As noted in the brief of the defendant Lucky Tap, the defense of complicity has been judicially recognized for over 100 years. (Reget v. Bell (1875), 77 Ill. 593.) The Dramshop Act has been amended repeatedly since the enactment of the original act in 1874. From the year 1875 to the present time our courts> have been applying the complicity doctrine in dramshop cases. Reenacting a statute which has been judicially construed is an adoption of such construction unless a contrary intent appears. (Gaither v. Lager (1954), 2 Ill.2d 293, 118 N.E.2d 4.) We find no merit in the plaintiff's contention that because the defense of complicity is not specifically set forth in the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135) that the resultant effect is that such defense is unconstitutional and deprives a plaintiff of due process of law.
The plaintiff raises the further issue that if complicity is to remain a defense in dramshop actions, then the trial court nevertheless committed reversible error in granting summary judgment to the defendants on such grounds.
2 Our supreme court has recently issued an opinion in which the history of the defense of complicity is extensively reviewed and further that court set forth a concise rule concerning such defense. See Nelson v. Araiza (1978), 69 Ill.2d 534, 372 N.E.2d 637.
In the Araiza case our supreme court stated:
"The orderly administration of justice dictates that a clear rule of complicity be distilled. That rule, predicated on the better-reasoned decisions and the concept of the doctrine is this: only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery. (See Hays v. Waite (1890), 36 Ill. App. 397; Douglas v. Athens Market Corp. (1943), 320 Ill. App. 40; Ness v. Bilbob Inn, Inc. (1957), 15 Ill. App.2d 340; Taylor v. Hughes (1958), 17 Ill. App.2d 138; Burnley v. Moore (1963), 41 Ill. App.2d 156; Baker v. Hannan (1963), 44 Ill. App.2d 157.) In many cases this will be an issue of fact under the given circumstances. In other cases whether there is sufficient evidence to support the doctrine as enunciated will be for judicial determination." Nelson v. Araiza (1978), 69 Ill.2d 534, 543, 372 N.E.2d 637, 641.
3 In the light of this recent pronouncement by our supreme court we are of the opinion that the trial court committed reversible error in granting motions for summary judgment to each of the defendants on the grounds of complicity. Whether the plaintiff was or was not guilty of complicity by actively contributing to the ...