APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
520 N.E.2d 1029, 166 Ill. App. 3d 809, 117 Ill. Dec. 678 1988.IL.255
Appeal from the Circuit Court of Effingham County; the Hon. Dennis Berkbigler, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. KARNS and CALVO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
The plaintiff, Arlene Patton, as administrator of the estate of Gilbert C. Patton, deceased, brought suit against defendants, D. Rhodes, Ltd., and Moritz Corporation, under section 6-21 of the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). The jury returned a verdict for the plaintiff in the amount of $62,000, which was reduced because of statutory limitations to $26,374.50. The dramshop defendants filed a post-trial motion to reduce damages, praying that the judgment be reduced to zero by virtue of crediting a $100,000 wrongful death settlement from the driver of the other automobile against the dramshop verdict. The existence of a covenant not to sue was revealed in early discovery proceedings. After a hearing the motion to reduce was granted and the plaintiff's judgment was reduced to zero. Plaintiff then filed a post-trial motion seeking reinstatement of the judgment and other relief. Plaintiff's motion was denied and this appeal followed.
The plaintiff presents two issues on appeal. First, the plaintiff maintains that the court erred in reducing plaintiff's dramshop judgment by crediting the wrongful death settlement previously received against the judgment. Second, the plaintiff maintains that the trial court erred in prohibiting her from addressing social security retirement benefits to which the decedent may have become entitled and from which plaintiff may have received support.
As to the first issue, we note that there has been an evolution of cases which includes Aldridge v. Morris (1949), 337 Ill. App. 369, 86 N.E.2d 143; De Lude v. Rimek (1953), 351 Ill. App. 466, 115 N.E.2d 561; Slone v. Morton (1963), 39 Ill. App. 2d 495, 188 N.E.2d 493; Valentine v. Peiffer (1964), 53 Ill. App. 2d 477, 203 N.E.2d 179. All these cases were discussed in Kurth v. Amee, Inc. (1972), 3 Ill. App. 3d 506, 278 N.E.2d 162. In that case the trial court dismissed certain counts, reasoning that plaintiff was entitled to only one recovery and had already received more than the maximum amount recoverable under the Dramshop Act. The appellate court reversed, stating:
"The underlying principle in all these cases is that there may be but one satisfaction for one injury irrespective of the availability of multiple remedies and actions. (Haupt v. Golick, 57 Ill. App. 2d 481, 484; Slone v. Morton, 39 Ill. App. 2d 495, 502.) However, this principle should not be used to prevent the recovery of the total, actual damages sustained by an injured party. It is not realistic to conclude that the amount received for a covenant not to sue one of several tort-feasors can be equated with the actual damages sustained by the covenantor. Accordingly, the only sensible procedure to follow is that outlined in the De Lude case -- assess the total damages sustained and then deduct any amounts already received.
Under this procedure, a plaintiff would not effect a 'double recovery' but be able to recover the actual damages sustained. It is possible, as pointed out in De Lude, that the actual damages as determined by the jury (or the court, if there is no jury) could be less than the amounts already received. In such case, the plaintiff has been fully compensated and the defendant would be discharged.
The position urged by the the [ sic ] defendants could amount to an exculpation of dram shop operators in cases where the actual damages sustained exceeded the statutory limits. In such cases, a plaintiff would be forced to proceed under the Act before he attempted to resolve his claim against the other tortfeasors.
We believe that the proper procedure is to assess the total damages, without reference to any amounts already received, and then reduce the verdict by such amounts. The difference, of course, would be subject to the maximum limits provided in the Act." Kurth v. Amee, Inc., 3 Ill. App. 3d at 510, 278 N.E.2d at 165.
In the instant case, the jury assessed total damages in the amount of $62,000 in manner and form as set forth in section 6-21 of the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). Section 6-21 provides in part:
"In every such action the jury shall determine the amount of damages to be recovered without regard to and with no special instructions as to the dollar ...