Wessel v. Carmi Elks Home, Inc.

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 (Ill. Rev. Stat. 1971, ch. 48, pars. 60 through 69), we held that it was erroneous to dismiss on motion a third-party complaint in which the architects sought indemnification from the contractor. Our decision rested on the fact that under the pleadings it was possible that the jury’s verdict could have been based on a finding that the injury to plaintiffs had been directly caused by the improper construction methods employed by the contractor, while the architects’ liability rested only in their failure to halt work on the job. In such a case, we held that a jury could find that the architects were passive tortfeasors while the contractor was an active tortfeasor. With respect to liability under the Structural Work Act, which does not hinge on negligence, we also held that the architects, as the persons responsible for supervision of the entire construction project, could be found to be less culpable that the contractor, whose direct conduct had caused the injury. 37 Ill.2d at 290-292 .

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 consider that the underlying principle illustrated by those decisions of imposing liability on the party principally at fault is applicable here. Cf. Restatement of the Law of Restitution, sec. 96.

I would note that prior to the enactment of section 14 of article VI of the Liquor Control Act there was no recognition at common law of any liability based on fault for the sale of liquor, at least to a purchaser who was a “strong and able-bodied man” (Cruse v. Aden, 127 Ill. 231, 234 ; Howlett v. Doglio, 402 Ill. 311, 318 ), or even an “ordinary” man (Cunningham v. Brown, 22 Ill.2d 23, 29-30 ). Liability under section 14 of article VI, likewise, does not rest on negligence or other fault on the part of the dramshop operator or the owner of the premises; the liability is made absolute by the Act. (Cunningham v. Brown, 22 Ill. 2d 23, 26 ; Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill. 2d 1, 7 .) Moreover, at the time when this cause of action arose and the complaint was filed, prior to the amendment of the Act in 1971 by Public Law 77 — 1186, liability required only that the dramshop operator had furnished liquor which “causes the intoxication, in whole or in part.” (Ill. Rev. Stat. 1969, ch. 43, par. 135.) It was therefore not necessary to establish that the liquor furnished by any defendant was the sole or even the predominant factor contributing to the intoxication. Nor does the liability of the owner of premises require any participation in or even knowledge of the sale in question. (Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d 1 .) While liability does not attach under the Act for injuries committed by the intoxicated person unless that person’s actions were tortious in character (McDonald v. Risch, 41 Ill.2d 242 ), there is, of course, no requirement that the dramshop operator have participated in those tortious actions or have been in a position to reasonably foresee their occurrence.

A major purpose of the Liquor Control Act is to provide an additional remedy to a person injured by an intoxicated person who may not himself by financially responsible, as the appellate court here recognized. In this regard the Act resembles the Structural Work Act, which was designed to impose upon the owners of property a liability for injuries caused by extra-hazardous structures, from which liability they had previously been insulated if the work had been done by an independent contractor. (Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 335 .) We held in Griffiths that an agreement by a subcontractor to indemnify a general contractor for damages paid by the latter in consequence of injuries caused by an unsafe scaffold built by the former was not contrary to public policy, and, as we have seen, a similar shifting of liability under the Structural Work Act was permitted in Miller v. DeWitt, 31 Ill.2d 273 , even without any express indemnification agreement. I am not persuaded that there are any distinctive features of the Liquor Control Act which should preclude a similar shifting of liability. I would add, as was observed in Dworak v. Tempel, 17 Ill.2d 181, 191 , that, practically speaking, the ultimate loss in many dramshop cases will be borne, not by the dramshop operator, but by his insurance carrier.

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 the 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 evidence may show. Here it might have shown inconsequential and “purely secondary” activities by the third-party plaintiffs and that the drinking, as a realistic matter, by the third-party defendants had been in their own homes, for example. And of course it might have shown otherwise. In order to sustain the dismissal of the third-party complaint the court must be able to determine from all the pleadings, taking into consideration their possible amendment, that in no event could the third-party plaintiffs have an action over against the third-party defendants.