Appeal from the Circuit Court of Williamson County; the Hon.
Robert H. Howerton, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The plaintiffs filed a complaint pursuant to section 14 of article VI of the Dramshop Act (Act) (Ill. Rev. Stat. 1979, ch. 43, par. 135). Count I alleged, in part, that due to his injuries, Kenneth Galyean sustained severe and permanent injuries and "has lost and will lose large sums of money which he would have earned in his occupation except for his injuries." Count II alleged, in part, that plaintiff's wife and children had "been injured in means of support." Judgments on the jury's verdict were entered for plaintiff for $8,000 and for his family for $2,900. The only issues on appeal are whether the court properly refused defendant's proposed instructions which stated that provocation is a defense to a Dramshop action, and whether plaintiffs received a double recovery on the "loss of earnings" element of damages.
The facts can be briefly stated. Kenneth Galyean and Martin Berra, who had been drinking intoxicants in the Hollywood Tavern, became involved in an argument over a pool game at the tavern. A fight ensued, and Galyean suffered a broken ankle.
• 1 Defendant cites Taylor v. Hughes (1958), 17 Ill. App.2d 138, 149 N.E.2d 393, Balice v. Weiand (1963), 40 Ill. App.2d 168, 189 N.E.2d 391, and Williams v. Franks (1973), 11 Ill. App.3d 937, 298 N.E.2d 401, in support of its proposition that provocation is a defense to a Dramshop action. Tresch v. Nielsen (1965), 57 Ill. App.2d 469, 207 N.E.2d 109, and Martin v. Blackburn (1942), 312 Ill. App. 549, 38 N.E.2d 939, appear to stand for the same proposition. The basis for the application of provocation as a defense in the foregoing cases was the doctrine that no person should be allowed to profit by his own wrongdoing. By provoking the intoxicated person, the plaintiff had acted wrongfully. (See Taylor v. Hughes (1958), 17 Ill. App.2d 138, 149 N.E.2d 393.) However, in Nelson v. Araiza (1978), 69 Ill.2d 534, 543, 372 N.E.2d 637, 641, our supreme court stated:
"Complicity is not predicated on the plaintiff's contribution to his injury but only upon his contribution to the inebriate's intoxication.
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."
In Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App.3d 515, 517, 408 N.E.2d 68, 71, this court stated:
"Complicity cannot be based upon a variant of the inapplicable contributory negligence concept, nor upon an `assumption of risk' theory, nor upon a theory that plaintiff contributed to his injury by provoking the inebriate to attack him."
Therefore, provocation is not a defense to a Dramshop action in Illinois, and the court properly refused defendant's tendered instructions.
Under the Act, "loss of means of support" has been construed as requiring that the person injured did in fact render support, and no damage award can be based on the future potentiality of support not presently provable. (Shiflett v. Madison (1969), 105 Ill. App.2d 382, 245 N.E.2d 567.) In the case at bar, Kimberly Galyean, wife of Kenneth Galyean, testified that at the time of the incident that is the basis of this lawsuit, she and Kenneth were the parents of two children. At the time of the incident neither she nor Kenneth were employed, and she was receiving public aid. After the Illinois Department of Public Aid determined that he was not eligible for unemployment benefits, Kenneth also received public aid. Kenneth's first job after the injury was at a food store that was owned by his uncle.
Kenneth Galyean testified that in 1979 he worked at Blankenship's in Herrin, Illinois, earning $3.25 an hour. He then worked in Florida from approximately July through December 1979, earning $6 per hour. He further testified that he earned approximately $8,000 in 1979, although his Federal income tax return shows $2,331 as his income. His 1978 Federal income tax return shows $2,251 as his income. He admitted that while in Florida his wife received public aid. After the injury he wore a cast on his leg until May 1, 1980. At the time of trial, September 13, 1983, the ankle still caused him pain and he was unemployed.
Among the jury instructions were the following:
"If you decide for the plaintiff, Kenneth Galyean, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the ...