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Ragan v. Protko

OPINION FILED NOVEMBER 28, 1978.

MARVIN R. RAGAN ET AL., PLAINTIFFS-APPELLANTS,

v.

GERALD PROTKO, D/B/A BEA'S JUNCTION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Christian County; the Hon. PAUL M. HICKMAN, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered in favor of defendant Gerald Protko, a tavern operator, in an action brought under section 14 of article VI of the Liquor Control Act, commonly referred to as the Dramshop Act (Ill. Rev. Stat. 1973, ch. 43, par. 135).

Plaintiffs, Marvin R. and Imogene Ragan, are the parents of Cyrus Ragan, deceased, who was 21 years old at the time of the accident that is relevant to this cause. The instant action was commenced to recover for injury to their "property" resulting from the intoxication of their son. See Ill. Rev. Stat. 1973, ch. 43, par. 135.

The primary issue on appeal is whether parents of a son of legal age can recover for his medical, hospital and funeral expenses as injury to their "property" under the Dramshop Act where their payment of the expenses is not made pursuant to a pre-existing legal liability for such charges.

The record reveals that Cyrus Ragan patronized defendant's tavern near Taylorville, known either as "Bea's Junction" or "Freddies" between 7 p.m. and 12 p.m. on July 24, 1973. While there, he consumed four or five mixed drinks (Harvey Wallbangers) and six to eight beers. Before leaving the tavern, Cyrus asked a fellow employee, Malcolm McClung, to follow him as he drove his car home to Pana, Illinois. Malcolm McClung observed that once Cyrus' car was beyond the city limits of Taylorville, it drew rapidly away from McClung's vehicle which was traveling at 55 m.p.h. Cyrus Ragan's car then began weaving to both sides of the road while its lights went off and on. Cyrus was thereafter involved in a one-car collision, receiving serious head and chest injuries.

Cyrus Ragan was under constant medical care for his injuries in the next eight months until his death on March 24, 1974. He never regained consciousness. Cyrus was initially placed in the intensive care unit in St. John's Hospital in Springfield, Illinois for 18 days. During that time his parents stayed in the care unit's lounge and took their meals in the hospital cafeteria. In late October of 1973, Cyrus and his parents were flown by air ambulance to the Mayo Clinic in Minnesota. The plaintiffs spent the first night in a hotel and the rest of the time in a motel nearer the clinic. After eight days treatment, Cyrus was returned to Taylorville where he remained until his death. During the periods of Cyrus' hospitalization in Springfield and Taylorville, his parents visited four or five times weekly, round-trip distances being 100 miles to Springfield and 40 miles to Taylorville.

Plaintiff's Exhibit No. 3, a hospital form, contains the following declaration signed by plaintiff Marvin Ragan:

"I hereby authorize payment directly to St. John's hospital of the Hospital benefits otherwise payable to me but not to exceed the hospital's regular charges for this period of hospitalization. I understand that I am financially responsible to the hospital for charges not covered by this authorization." (Emphasis added.)

Marvin Ragan testified that it was his understanding when he signed the form that he would be responsible for any bills that Cyrus incurred. His sentiments were, "What father isn't going to take care of his son." Mr. Ragan assumed that he signed similar financial responsibility forms with respect to other charges. On cross-examination, Mr. Ragan stated that no one specifically told him that he had a legal responsibility for these bills but he assumed that he did.

Offered into evidence were numerous cancelled checks of the plaintiffs' for medical charges and funeral expenses and insurance vouchers showing the amounts of individual claims and the benefits actually paid thereon.

In this action the plaintiffs sought to recover Cyrus' medical, hospital and funeral expenses and the expenses for meals, lodging and transportation which they incurred while attending to Cyrus during his medical treatment. They also sought to recover for the destruction of Marvin Ragan's 1972 Chevrolet Vega automobile.

It was also adduced at trial that Cyrus Ragan was a full-time college student at Monmouth College. He had a State scholarship for approximately $1,000 but the remainder of his yearly college expenses, some $4,000 to $5,000 was paid by his parents. During the summer breaks, Cyrus lived with his parents in Pana and worked for the Christian County Highway Department. He paid no living expenses and used the $700 or $800 that he earned at his summer job as spending money. Cyrus was claimed as a dependent on his parents' income tax returns for 1972 and 1973.

There are very few dramshop decisions that have any relevance to the issue presented for our resolution.

In Fortner v. Norris (1958), 19 Ill. App.2d 212, 153 N.E.2d 433, the appellate court held that the trial court had erred in dismissing an "injury in property" dramshop action brought by a wife on the basis of her legal liability for the medical, hospital and funeral expenses of her husband. Plaintiff's husband's injuries and death had resulted from gunshot wounds inflicted upon him by an allegedly intoxicated patron of defendant's tavern.

The court, noting that the family expenses act (Ill. Rev. Stat. 1957, ch. 68, par. 15) imposed an absolute legal liability on the plaintiff for her husband's hospital, medical and funeral expenses, held that she had sufficiently alleged an "injury in property" within the meaning of the Dramshop Act. It specifically rejected the proposition that a direct physical injury to one's tangible real or personal property is required in order for a person to be "injured in property."

In reaching its decision the court discussed two previous dramshop cases where recovery had been sought and allowed on the basis that the plaintiffs had become legally obligated for certain expenses because of their relative's or another's intoxication, Danley v. Hibbard (1906), 222 Ill. 88, 78 N.E. 39, and Haw v. 1933 Grill, Inc. (1938), 297 Ill. App. 37, 17 N.E.2d 70.

Three years later, in Shepherd v. Marsaglia (1961), 31 Ill. App.2d 379, 176 N.E.2d 473, the Appellate Court, Second District, was confronted with a similar issue but with the significant difference that the claim was made by parents for sums spent in curing their minor son of injuries which he received in a car accident that occurred upon his leaving defendants' taverns.

The court there also held that the plaintiffs' "property" cause of action was improperly dismissed even though they had not specifically pleaded the family expense ...


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