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11/04/87 Anthony Darguzas, v. Roy Robinson

November 4, 1987

ANTHONY DARGUZAS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

ROY ROBINSON, D/B/A ROBINSON'S FAMILY INN, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

515 N.E.2d 451, 162 Ill. App. 3d 362, 113 Ill. Dec. 642 1987.IL.1638

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. REINHARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

This is an appeal from a judgment of the circuit court of De Kalb County in favor of Anthony Darguzas, plaintiff-appellant and cross-appellee, and against defendants-appellees and cross-appellants. This action arose under section 135 of the Liquor Control Act of 1934 (Dramshop Act) (Ill. Rev. Stat. 1983, ch. 43, par. 135). In his complaint plaintiff alleged that he, on October 31, 1984, was severely beaten by two individuals whose intoxication was caused by defendant dramshops. The jury awarded $35,000 in damages to plaintiff. Defendant dramshops filed a post-trial motion for remittitur of the $35,000 award to the statutory $15,000 limit (Ill. Rev. Stat. 1983, ch. 43, par. 135) and for a new trial on the basis that the jury's verdict was against the manifest weight of the evidence. The trial court granted defendants' motion as to the remittitur count and denied it as to the grant of a new trial. This appeal ensued. The issues on appeal are: (1) whether the jury's verdict was against the manifest weight of the evidence; and (2) whether the trial court erred in limiting plaintiff's total recovery to $15,000, recoverable from both defendant dramshops. We affirm.

Plaintiff testified at trial that on the evening in question he went to Robinson's Family Inn (Robinson's), one of defendant dramshops, where he remained for approximately one hour until closing time. While in the bar, plaintiff consumed approximately three beers and one or two mixed drinks and started talking to defendants, Busch and Boekenhauer, who were playing dice for money. Plaintiff joined in the game. Busch testified that during the course of the evening he had about two or three drinks at Robinson's. Boekenhauer testified that he had had between five and seven drinks during the same period of time. The two defendants stated that they had paid for their own drinks. When Robinson's closed, Busch and Boekenhauer asked plaintiff to continue playing dice with them across the street at Hill's Tap, another defendant dramshop. Plaintiff testified that when the three of them left Robinson's for Hill's Tap, he observed that the other two men were intoxicated. At Hill's Tap, plaintiff and defendants, Busch and Boekenhauer, met Bart Buffington, an acquaintance of the two defendants. According to plaintiff, Buffington also appeared intoxicated. The four men remained at Hill's Tap for approximately one hour, during which time they continued drinking. Each party paid for their own drinks. When Hill's Tap closed, the four decided to go to Buffington's apartment to play cards. The four obtained a 12-pack of beer from the bar. Plaintiff testified that he did not know exactly who picked up or paid for the packaged beer. At Buffington's apartment the four men started playing blackjack. Plaintiff stated that he and the others drank some beer from the 12-pack. In the course of the game, several arguments ensued between the four players regarding the rules of the game. Plaintiff expressed his intention to leave. This announcement led to the altercation which constitutes the underlying basis for the instant action. Plaintiff was severely beaten and needed hospitalization and plastic surgery.

We first address the issue raised by defendants in their cross-appeal. Defendant dramshops contend that the jury's verdict was against the manifest weight of the evidence. We disagree.

At trial, defendants raised the affirmative defense of complicity to plaintiff's complaint. Plaintiff's argument that defendants raised the issue of complicity for the first time in their post-trial motion and on appeal is meritless. This defense was presented at trial in the form of an instruction given to the jury without objection.

In Nelson v. Araiza (1978), 69 Ill. 2d 534, 372 N.E.2d 637, the Illinois Supreme Court stated that the defense of complicity to actions under the Dramshop Act is a judicial rather than statutory creation. (69 Ill. 2d at 536.) This doctrine is based on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to recover under the statute. (69 Ill. 2d at 538.) In a dramshop action whether a plaintiff is or is not guilty of complicity, by actively contributing to the intoxication of the alleged inebriate, is an issue of fact for the jury. (Meritt v. Chonowski (1978), 58 Ill. App. 3d 192, 195, 373 N.E.2d 1060.) When the determination of the case rests largely upon findings of fact, the reviewing court will not disturb the trial court's determination as long as there is evidence in the record to support it. (Graebe v. Graebe (1981), 95 Ill. App. 3d 1144, 1150, 420 N.E.2d 1095.) We find that there is sufficient evidence in the record before us to support the jury's verdict against defendant dramshops.

The appellate court in Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App. 3d 515, 408 N.E.2d 68, stated that under the complicity analysis the only relevant issue is whether the plaintiff materially contributed to the inebriate's intoxication (86 Ill. App. 3d at 517). An examination of the record here indicates that the jury could have properly concluded that plaintiff did not materially contribute to defendants' intoxication in that he did not encourage their drinking by buying drinks for them or permitting them to buy his drinks. We conclude that the trial court's finding was not against the manifest weight of the evidence, and we affirm the judgment of the trial court.

Next, we address the plaintiff's contention that the trial court erred in directing that plaintiff recover the statutory damage award of $15,000 collectively from both dramshops, rather from each individual defendant-dramshop.

Section 6 -- 21 of the Dramshop Act as applicable at the time of the events leading to the case at bar provides in pertinent part:

"Every person who is injured in person or property by any intoxicated person, has a right of action in his or her own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. . . . In no event shall the judgment or recovery under [the] Act for injury to the person or to the property of any ...


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