DOROTHY WESSEL, Admr., еt al. v. CARMI ELKS HOME, INC., et al., Appellants. (Emily Rice et al., Appellees.)
No. 44670
Supreme Court of Illinois
January 26, 1973
54 Ill. 2d 127
The circuit court erred, however, with respect to the amount of compensation to be awarded. The statute provides for 30 weeks compensation for a fracture of the spinous process. (
Reversed and remanded, with directions.
Opinion filed January 26, 1973.
DAVIS, J., concurring.
WARD, J., dissenting.
J. C. MITCHELL and W. A. ARMSTRONG, both of Marion, for appellants.
GOSNELL, BENECKI & QUINDRY, LTD., of Lawrenceville, and PEARCE & FECHTIG, and CONGER & ELLIOTT, both of Carmi (MAURICE GOSNELL and IVAN A. ELLIOTT, JR., of counsel), for appellees.
MR. JUSTICE KLUCZYNSKI delivered the opinion of the court:
This action was commenced in the circuit court of White County based upon an alleged violation of
Defendants answered, denying liability, and then filed a third-party complaint against Rice and Cox based upon a theory of implied indemnity for any damages, costs of suit and attorneys fees which might result from plaintiffs’ action. The third-party complaint charged that either Rice or Cox, rather than defendants, was the “active and primary cause” of any damage to plaintiffs, and that such
A motion to dismiss the third-party complaint was granted by the trial court and the appellate court, one justice dissenting, affirmed. (Wessel v. Carmi Elks Home, Inc. (1971), 133 Ill. App. 2d 902, 272 N.E.2d 416.) Thereafter, upon defendants’ petition, the appellate court issued a certificate of importance.
The sole issue presented for review is whether one who may incur dramshop liability because of the sale or gift of intoxicating liquors to a third party has the right to seek indemnification frоm the latter whose activity is alleged to be the primary or active cause of the damages. This issue has caused several appellate courts to reach divergent results.
In Coffey v. ABC Liquor Stores, Inc. (1957), 13 Ill. App. 2d 510 (leave to appeal denied, 11 Ill.2d 629), a dramshop action was brought against four tavern operators seeking damages allegedly caused when plaintiff was assaulted by one who had become intoxicated. Several defendants filed a third-party complaint against the alleged assailant, which the trial court dismissed. The appellate court affirmed, reasoning that only an innocent party could seek indemnification, thus excluding a tavern operator who, by the terms of the Act, is a tortfeasor. It further concluded that the Act was penal in nаture and to allow indemnity would violate equitable principles and public policy.
In the present case the appellate court adopted the rationale of Coffey. The majority was of the opinion that to hold otherwise and extend the right of indemnity to the tavern owners or operators would frustrate the penal nature of the Act and its underlying public policy, i.e., to place the ultimate burden upon the liquor industry for injuries caused by intoxicated patrons.
Similarly, in Walker v. Service Liquor Store, Inc. (1970), 120 Ill. App. 2d 112, the appellate court found that the Liquor Control Act neither allowed nor precluded indemnification and, as such, reference to it would not be constructive. The court then stated that Illinois “does allow a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor. Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630.” (120 Ill. App. 2d at 115.) Based on this conclusion the court adhered to its prior decision in Geocaris and reversed the trial court‘s dismissal of a third-party complaint seeking indemnity. However, in neither Geocaris nor Walker was further review sought and the present case now affords this court the first opportunity to consider whether indemnity is proper in a dramshop action in light of our recent decisions which recognized the right of implied indеmnity founded upon a qualitative comparison of the tortfeasors’ conduct. Miller v. DeWitt (1967), 37 Ill.2d 273; Chicago and Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill.2d 600.
After examination of the Geocaris and Walker decisions, upon which defendants herein place substantial reliance, we believe that the reasoning of those decisions is inappropriate. Both basically relied upon the Sargent case
Policy considеrations, as defendants concede, are of substantial importance in this matter. As repeatedly stated by this court, the statute, as applied to a dramshop owner or operator, is penal in character. (Howlett v. Doglio (1949), 402 Ill. 311, 318; Moran v. Katsinas (1959), 16 Ill.2d 169, 174.) This penal nature is further emphasized by the liability limitations contained therein.
Moreover, the Liquor Control Act specifically stаtes that it is designed to protect health, safety and welfare and to foster and promote “temperance in the consumption of alcoholic liquors *** by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.” (
These factors demonstrate that a substantial burden has been placed upon those engaged in the liquоr industry. Such responsibility, although possibly more stringent than that imposed upon other business ventures, is permissible as a proper exercise of the State‘s regulatory control of intoxicating liquors. (Weisberg v. Taylor (1951), 409 Ill. 384, 387; California v. La Rue (1972), 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390.) We believe that by
Defendants argue, however, that recent legislative history relating to
The aforementioned factors do not sufficiently demonstrate such intent. Examination of recent legislative history reveals various efforts to lessen or increase the amount of recoverable damages. (E.g., Legislative Synopsis and Digest: 76th G.A., H.B. 405; 73rd G.A., H.B. 1017.) The failure of the legislature to increase the statutory limit of recovery may have been prompted by a number of reasonable policy considerations, and the intent which defendants seek to engraft upon these activities is unconvincing.
Moreover, the 1971 amendment to section 14, which defendants deem significant, does not support their claim. Prior to its adoption this amendment had been рroposed at various legislative sessions, several of which pre-dated any judicial consideration of the issue now under review. (E.g., Legislative Synopsis and Digest: 76th G.A., H.B. 322; 75th
Therefore, we hold that as a matter of law those who may incur liability under
Judgment affirmed.
MR. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.
MR. JUSTICE DAVIS, concurring:
I concur with the view expressed by the majority. Liability under the Dramshop Act is not premised upon fault of negligence. (Graham v. U.S. Grant Post No. 2665, V.F.W., (1969), 43 Ill.2d 1, 7; Cunningham v. Brown (1961), 22 Ill. 2d 23, 26.) Prior to the Act, the dramshop owner or operator suffered no liability resulting from the mere sale of intoxicating liquor to an ordinary person. The Act was the result of the temperance mоvement and its demand that those who profit from the sale of intoxicating liquor should bear the burden of the evils or damages it causes. (Cunningham v. Brown (1961), 22 Ill.2d 23, 29; Voelker, Parties to Dram Shop Actions, 1958 U. Ill. L.F. 207, 214.) As a result, the Act imposed strict liability upon those engaged in the liquor traffic.
In view of the legislative purpose of the Act, it would be anomalous to weigh the dramshop liability with that of the intоxicated person for purposes of indemnity in the sense of passive versus active negligence or upon degrees of
Presumably, the theory of such strict liability is that the effects of intoxication upon a person are sufficiently severe to warrant a drastic remedy. Under this legislative rationale, we should not permit the ultimate responsibility for the sale or gift of intoxicating liquor to be minimized qualitatively by the conduct of the intoxicated person.
I do not disagree with the general philosophy that indemnity should be available to place the ultimate liability upon the one who is primarily responsible for a wrong. Indemnity should not be employed, however, where it would result in frustration of the expressed public policy of this State. I cannot but conclude that the Dram Shоp Act is a legislative expression that a part of the cost of doing business in the liquor trade is the exposure to liability under the Act. To permit this cost to be passed on to another, who is not in the trade or liable under the Act, is contrary to its intended purpose. It is no answer to suggest that, in any event, the ultimate responsibility is shifted by the dramshop owner to his insuranсe carrier.
Further, it seems inappropriate to characterize the type of liability imposed by the Act as the result of either active or passive negligence. Negligence is not involved and the strict liability of those engaged in liquor traffic should end with the Dram Shop Act.
MR. JUSTICE WARD, dissenting:
I prefer the result in Geocaris v. Bangs, 91 Ill. App. 2d 81, and in Walker v. Service Liquor Store, Inc., 120 Ill. App. 2d 112, to the conclusion the majority reaches here.
This court has often cited the judge-made rule forbidding contribution between joint tortfeasors guilty of intentional wrongdoing. (Muhlbauer v. Kruzel, 39 Ill.2d 226, 230; Miller v. DeWitt, 37 Ill.2d 273, 289-290; Chicago and Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, 603; Skala v. Lehon, 343 Ill. 602, 605; Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 339; Wanach v. Michels, 215 Ill. 87, 94-95.) We nevertheless indicated in the Chicago and Illinois Midland Ry. Co. case, that although the evidence there failed to support such a claim, a person whose negligence was responsible for a dangerous condition causing injury could be required to indemnify one whose negligence consisted only of a failure to discover and correct that condition. And in Miller v. DeWitt, where persons injured by the collapse of a roof inadequately shored by a contractor recovered damages from the supervising architects on a complaint charging both common-law negligence and a violation of the Structural Work Act (
While there does not exist between a dramshop operator and his customer the pre-existing contractual relationship or community of interest exhibited by the Chicago and Illinois Midland Ry. Co. and Miller cases, I
I would note that prior to the enactment of
A majоr purpose of the Liquor Control Act is to provide an additional remedy to a person injured by an
I am not dissuaded from disagreement with the majority by the argument that indemnification must be ruled out because the statute is “penal.” The Act may, of course, loosely be characterized as “penal” in the sense that it imposes a liability not existing at common law and in thе sense that the liability imposed is liability without fault. In fact, a description of the Act as penal has generally been employed, not for the purpose of imposing liability, but, on the contrary, as a justification for limiting the applicability of the Act (Cruse v. Aden, 127 Ill. 231), or of limiting the type of damages recoverable under it. Freese v. Tripp, 70 Ill. 496; Howlett v. Doglio, 402 Ill. 311.
One is not, of course, called upon at this stage of the proceeding to forecast what the evidеnce may show. Here