May a dramshop keeper seek indemnity from an intoxicated person for damages paid by such keeper resulting from the willful, deliberate and malicious acts of an intoxicated person ? Sitting in the first district, this court answered this question in the affirmative. Geоcaris v. Bangs, 91 Ill App2d 81,
The complaint alleges in substance that the dеfendant, Clem (then 18 years of age), purchased intoxicating liquor from the defendant package liquor store. Two days latеr he positioned himself on a bridge above the northbound lane of traffic on an interstate highway and dropped an autоmobile wheel and tire through the windshield of a car below. Its driver, the plaintiff (Walker), lost control of his car and sustained severе injuries and the loss of sight in one eye. Walker sued the package liquor store for injuries caused by an intoxicated persоn under the provision of our Dram Shop Act, Ill Rev Stats 1967, c 43, § 135. Service, the liquor store, sued Clem in a third-party complaint in event Walkеr should be successful against it in his damage suit. If Service wins in Walker’s suit against it, there is no need for indemnification and the issue becomes moot. We noted in Geocaris, however, that a third-party complaint need not establish an absolute right to recovеry but need only show a possibility of recovery. In Miller v. DeWitt, 37 Ill2d 273,
The principal thrust of the appellee’s argument is that Geocaris is contrary to the public policy established by the legislative and decisional law in this State and should be repudiated. The position is in substance that the financial burdens fоr injuries caused by intoxication or in consequence of intoxication caused in whole or in part by the use of intoxicating liquors should be borne by the liquor industry which profits therefrom. Coffey v. ABC Liquor Stores, Inc., 13 Ill App2d 510,
The Dram Shop Act neither permits nor preсludes indemnification. Thus its precise terms do not answer the problem of indemnification. The Dram Shop Act prohibits a sale to or a purchase by anyone under 21 years of age and this applies to a female who, for most other purposеs except voting, is considered an adult at 18. It is thus clear that the legislature has not based its public policy solely on minority. Wе have noted that Clem was a male, 18 years of age. He was a wrongdoer under the Dram Shop Act by purchasing the liquor. The vеndor likewise was a wrongdoer by selling to him. Both are subject to the criminal sanctions imposed by the Act, but such sanctions have nо relationship to civil responsibility or civil liability.
In Prosser, Law of Torts, 3d ed 1964, § 48, p 281, it is stated:
“Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify will be recognized in cases where community opinion would consider that in justice thе responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.”
Illinois has recognized a difference in the kind and quality of tortious conduct in declaring that Illinois does not allow contribution аmong joint tort-feasors, but it does allow a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor. Miller v. DeWitt, 37 Ill2d 273,
In both Geocaris and here, it is scarcely debatable but that the conduct of the third-party defendant is more reprehensible than that of the third-party plaintiff. We need not search for a specific preexisting peg upon which to hang our hats and justify indemnification. Wе find it difficult to suggest that the liquor store and Clem were concurring tort-feasors. The sale took place on December 24. Thе drinking and the actions of Clem took place two days later. It flies in the face of actuality to say that the two acts оf the two defendants were concurrent. It is equally disruptive of actuality to suggest that this case is an effort to seek contribution among joint tort-feasors. The suit is predicated upon the proposition that the liquor store sold without knowledge of the minority of the defendant (if that makes any difference) and seeks total indemnification from the defendant. As we understand the casе, it does not seek an apportionment of the damages between the two so-called wrongdoers, but seeks total indеmnification by one against the other for the wrongdoing of the latter who, as the pleadings here suggest, is the primary moving proximаte cause of such injury or damage. In Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187,
Reversed and remanded.
CRAVEN, P. J. and TRAPP, J., concur.