Petition for a Writ of Certiorari — Saxner v. Waynick (No. 642)

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Dice est U. s.

eat ds,

IAN 14 60

JAMES R. BROWNING, Clerk

IN THE

~ Supreme Courtof the United States

Ocrones Kk PREM, 1959,”

No. 642

PHILIP SAXNER and RUBIN SAXNER dojng business

as PHILS TAVERN, and CHICAGO'S LAST DE-

‘PARTMENT STORE, an Illinois corpgration, )

Petitioners,

MARY ANN WAYNICK, ef ai.

. PETITION FOR A WRIT OF CERTIORARI TO THE

' UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT. - ~

* —— Hakotp Oxtinsky Pate

am il’ South LaSalle Styect

oa Chicago 3, Illinois

Morris SAXNER °

ees ae, | 134 North LaSalle Street

- ~—Chieago 2, Ilhnois |

Attorneys for Petitioners,

Philip, Saxner and

Rubin Saxner re ae

Sermour J, Layrer a

33. North LaSalle Street ° ®

( Chicago ?,. Illinois, .

* Attorney for Petitioner,

Chicago’s Last Department :

Store

January 1960

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The Scheffer Press, Inc.—ANdover 3-6850

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Setar "INDEX

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‘@ . Opinion below ............. Sceitelaenannadaassds vaniavngichiguninansnaeaunnictte® |

~ Jurisdiction ............. Me sitlilaateile ATION PERS TOR EA TO oa a

‘ (Questions presented sale we Natio Pa ce. 2

f “Statutes invadved . ieleidlenacipai fe ai WaT 1A eR ean: a

Statement. ......... Lesdesprantonce sii socia siaicale scsncasausinnaonsi pevasiatenninani 4

Reasons for granting the: writ ............. | TER Ne ao.

Conclusion asienadinescteieenonesea irons Sieelahaahionetianceaks ASN aoa =

. Appendix .A ...:.:........ EI: Ra neo cree eaasestvonsecasticce EM

. Appendix “ESE TA Cael eel eli castes peed SASS Pe si WRC On

Appendix C ............... SAR OAD: Ae ee Bn

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Appendix 1 ....0.......c.0 Sabian asia sein giaatioidaiind sessesbennsserseeses Vda

Appendix E OI esac CORE SE A ign.

TIE TF Scstintigiietienneaey 5" LR SO Seensesnsesnedecnssooeonees l4a |

“CITATIONS.

. Cases: oe |

Addressograph- Multigraph C orp. v. American -Ex-

pansion Belt & Manufacturing Co., 316 US,

cata NU cc ccaccasiapdesnnseseneeeincnince 1 0

= Beck v. Groe, 245 Minn, 28, 70 N.W 2d S815 falas 10

Belding v.- Johnson, 86 Ga. IVs, 12 S.E. sO a” oe

; Britton v. Samuels, 143 Ky. 12 136 SW. 3 14

srunnworth ‘v. Kerens-Donnewald ‘Coal Co., 260

Fa Ill. 202, 1 103 N. We 17 ) SbObROSErERTESD REESE 0bt SECEDE DENSA NRSDRD OS 18

Busser v. Nobel, 22 \pp. 2d ANE

Ne ey ean i ___ =a, Le en e Ee 7, 14,19

] “soy

i is ;

3

oe

i | Pe a odes ae 3 PAGE

Cherbonnicr v. Rafalevich, 88 F. Supp. 900 ......... 10

Cole v. Rush, 45 Cal. 2d 345, 289 P.-2d 450.0... Ww.

Cruse vy. Aden, 127, IMy 231, 20 NUE. 73 cession 10

Demage -v. Feierstein, 222. Wis. 199, 268 N.E.

ie A EES Hela fcnedladaliasihip ina 10, 17

Ejdridge v. Don Seniatiieie,. Inc., 342 Ill. App.

_ 151, 95 N.E..2d 512 (leave — denied,

Re BIE FEIT T iccicsesshectianiesahicninnicieetitialaciapiigiicin i

Erie R. Co. v. Tompkins, 304-US. 64, 58 S. Ch .

WOE cca cece senna 19, 20,21

Ferroline Corp. v. Genéral Aniline & Film Corp.,

207 KF. 2d 912, certiorari denied 347 U.S. 979,

74S. Ct. 784 and 348 U.S.851,75 S.Ct 19 2. 20

Fidelity Union Trust Co: v. Field, 311 U.S. 730,

61 S. Ct. 488 (rehearing denied in 314 U.S

WO OE Or Fe, i aeerecccoctwnce 19

Mlandermey er , ‘Cooper, So ‘Ohio St. oot, 98 N. EK.

FF nn BT TOT NEL TE ER OO Mccsusasubsnenses 10

Fleekner’ v.. Tinitit; oF Cal. App. 2d 246, 210 P.

Se Fe esiantahnith navisnpenienaiciacni Oe

Gibson v. ‘Leonard, 148 I). 182, 39 WE. '263....... si 13

Healy v. Cady, 104 Vt. 4632 161 AL TDD oc. 1. AS

Holmes v. Merson, 285 Mich, 136, PRO KW. 138.4 13:

Howlett v. Doglio, 402 IIL 311, 83.N.B. 24.708 10

Kennedy v. Garrigan, 23 S.D. 265, RTNW. 783 19.

Kingen v. Weyant, 148 Cal. App. 2d (Adv. p. 686), .

2 2 Ra eee i 10.

— Manthei_v. Heimerdinger, 332 Til. App. 3%, D

; ¢ . peeiediereeancee 6

Moberg -v. Scott, 38°S.D. 423, 161 NW. 998 ..,...... 10

7 t ; \

iii :

aa PAGE.

Peek v. Gerbery154-Or. 126, 59 P. 2d 675 vcs. 11

“wy Pratt v. Daly, 55 Ariz. 585, 104 P. 24 M7"... 10

~ Riden ‘v. Grim, 97 Tenn. 26, 26 S.W. 1097 rs 9°

Rowers v. Dwight, 145 F. Supp. 537... 14, 15, 16

" . Seghetti v. BoP. Berry Coal Co., 186 Tl. App. > |

wig PBB vrsserhevseeaseensonseepesees bcausheoestesadanebliaisin ssveneeees nator 134

"Schell v. Vergo, 166 Mise. 389, 4 N.Y. S.2d 644 ..

Seibel v. Leach, 233 Wis. 66, 288. N.W. 774 1... 18

Smith v. Drave Corp., 2033 NPE 36D oe ageeeescssessesen 20

| Steele vy. Commercial Milling Co., 50 PF. 24 1037 ..... 12 |

‘Swanson vy. Ball, 67 S.D. 161, 290 'N W. 482 sis 10~-

* Swift y. Tyson, 16 Pet. 1 ..... Pa et . 20

Town of Starkshoro V. Town of ‘Hinesburgh, 1 -°

ee FD cesses 5s saalbehboentitigheitubbanlsenenieccnangscdupbenibneetieetenilon - 32 af

tek Waller v: Collinsworth, 144 Ky. 31, 137 S.W. 776 .. 4+

°° Warwick \.-Blackney, 272° ae | Ee ere ere 13

Ly. West 4. American Teleph. & -Teleg. Co. a1 US. nap

a DS, OB. Ct. ae nisincnetansdentedgnaenaiatsineaniddiae 19

ae a > Americar Steel & Ww tre Co. 258 [a z

A.L RY. soomdaannecmntecnnanseenntinees mmf raid lninnea

; Statutes : ses

Ree Iinois Liquor Contro} Act, -ch. 43, Zithinois. Re-

a &/

hy _ vised Statutes: =» . 5

Section 94 conve besqeeeieaeseneeees peneeensngsecegnceesneres Sieececscsogaceetby 13

“Section 131 pesos mnewrere sanegi a forveesnenennecensiersiad nenieneee

Section 135, sssssnngeernnsteenannagdevneenennnn it te See => ao

| Michigan ‘biquor Control Act. 13, Mich, Stat,

:- Annotated: fle

Section 22 (see. 1 ‘ 3493) pivinianabsanaunien sesscenessressesneestby LEA

Section 29 (see./18.1000). ...... AONE ae cossessonss 9

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Mixeellineous: ot ee 2

21 4 L.R . . 2d 247 G seteereee + gear ce a eeeeneeeee eeeeeeeeterree eereeee erie 19

1 30 A. LR: 359, 3o8 ceeseetennnnne teeeeee eeeeee tees ener eeeeee eeeeeeee 10

Sonviiinesanes iiss Remninineippeinngenanits I

38 hin Jur., N Negtibence, see; 158, note 21 - baci A213,

3l Ill. Law & Practice, Negligence, see. 31 4... A

BO “Am. i 2 intoxicating: Liquors,» sees. 520 and

oz1 pcogMoegecoooore .

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a IN THE © -

SUPREME. COURT OF THE UNITED STATES «.

* We - OctrosEr Treo, 1959./ °

oP ae .

-

: No. : os

.

PHILIP SANNER and RUBIN SANNER doing business

sus PRLS TAVERN, and CHICAGO'S LAST DE. --

PARTMENT STORE, an Illinois corporation, © o:'

ae Petitioners,

had > VS,

VARY ANN WAYNIE€K; et al. > oh

PETITION FOR A. WRIT OF CERTIORARI TO THE

* | YNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT. . -

‘ . : :

Petitioners pray that a writ of certiorari issue to review

the judgment “enteted in the above case on July 20, 1959,

hy the United States Court of Appeals for the Seventh

_Cireuit, reversing and remanding with directions the trial

_> . court’s”order dismissing the complaint.’

OPINION BELOW.

The opinion of the Court of Appeals: (Appendix A, |

infra, p. 1a) is reported at 269°F. 2d 322. rng es

8 .

: The trial court’s order was affirmed in part but only as

to the defendants who owned the buildings in which the .

other defendants operated taverns. These owners did ‘not

join in the appeal.

.

-

ate ase JURISDICTION. |

*. ; The judgment of the Court of Aiypeals: (Appendix B,

) inffa, p. 9a) was entered on July 20, 1959., An order ‘of

the Court of’ Appeals — a rehearing (Appendix se

for filing a petition for writ “of: certiorari was extended,

by order of Mr. Justice Clark on December 1, 1959° to

. January 14, 1960 (Appendix D, infra, p. lla): The juris:

diction, ‘of this aaa is invoked under 28 U-:S.C. 1254 (1). :

QUESTION PRESENTED. *

Whether there is a common law right of action against .

‘a vendor of liquor, who sells to an intoxicated vendee, in’

-Violation.of a penal statute, in favor ‘of. those injured by

the intoxication of the vendee, in jurisdictions w hich have ~

Dram. Shop or Civil Damage statutes.’

i STATUTES INVOLVED.

‘Section 131 of.the Illinois Liquor ‘Control Act, see. 131,

‘Ch. 43, Illinois Revised: Statutes, 1959, which was in effect

at the time of thie alleged occurrence, provides:

No. licensee nor any’ officer, associate, member,

representative, ‘agent or employee of such licensee

shall sell, give or. deliver alcoholic liquor to any

minor, or to “any intoxicated: person or to any aieass

?We omit frien the question presented the circumstance

' of the case at issue, that the liquor was ‘sold in one state

and the injuries, occurred in another state, ‘because we “do

* not feel it to be material to a determination of the question.

While it is true that the Court of Appeals sought. to give

‘ common law redress because of the consequerice of denying

' extraterritorial effect to both the Illinois and Michigan liquor

control acts, it would appear that the holding. of the deci-

sion.would apply equally-as well to situations where no state

boundary lines were crossed but which are otherwise analo-

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known by him fo ‘be an ‘habitual. drénkard, ane:

thrift} insane, mentally ill, mentally deficient ot in

need of mental treatment. s .

. Whoever violates this Section shall, in addition to *

e other penalties provided for ih this Act, be fined not

nore than $100, or’ shall: be imprisoned i in the county

‘jail for-a period of- not more than six months, or

both, for the first offense; and for the second and

subsequent offenses shall be fined not. less” than $90)

nor: more than $100, or shall be imprisoned in the .

county jail for a period of not more than SIX months,

or be both so fined ‘and imprisoned. . (

Section 94 of the /Illinois Liquor Control Act, see. 94,

* ch. 43, ‘Tilinois Revised Statutes, 1959, which: was in effect

at the time of the alleged occurrence, and sets forth the |

e

regulation. of the manufacture, sale

_ purpose of the Act, provides:

‘This Act shall be liberally construed, to the end

that the health, safety and. welfare of the People of

he. State of Illinois shall be- protected and temperance

in the consumption of aleoholic, liquors shall be fos-:

tered and promoted by ‘sound and crf control and

d aoe sae

of alcoholic liquors.

Section 135 of ‘the Illinois Liquor Control’ Act ( known

‘as the Dram Shop Act), see. 135, ch. 43, Illinois. Revised |

Statutes, 1955 and Section 22 of the Michigan Liquor Con-

trol Act, sec. 18.993,#3 Mich. Stat..Ann., 1957, which were

in éffect at the time of the alleged occurrence, are ‘not

irectly involved in the question presented for review.

| wevér, the Illinois section is set forth in Appendix E ;

-. (infra, p. 12a), and the, pertinent text of the Michigan

section is set forth-in Appendix F (infra, p. 14a).

° ° Py = pas 4 ar 4

hee ’ STATEMENT.

Plaintiffs, Mary -Ann Waynick, . Wilma ‘Ann ‘Seruggs,

and Carl Mack Wayhick, Linda Kay Waynick, ‘Nellie Suc

LW aynick and Alice Faye Waynick, minors, by Mary Ann

ow aynick, their mother and next friend, who are citizens

| and residents éf the state of Michigan, filed a diversity

\-action in the United States District Court for the North-

‘ern District of Illinois, Eastern Division, at Chicago, Illi-

-nois against defendants who are citizens and residents’ of

the state of Illinois. It names as defendants Chicago's —

. Last Department Store, an Illinois corporation, “Philip

Saxner and Rubin Saxner, doing business as Phil’s Tav-

ern, and” William Turbin, doing business as Matlan Liy-

uors, who were: engaged in the business of selling ane

‘+ furnishing intoxicating liquors in the state of, Illinois.

The complaint (A.A. 6- 19°) seeks recovery, of damages

» sustained by plaintiffs, when ’an automobile under. the

control of Bruce Sims, its owner, and drivén by Johnie K.

Owens, collided on U.S. Highway 112 in thé state of

Michigan with an automobile in which plaintiffs. were rid-

ing, and Which was then being driven by William Gerald

Scruggs, who was killed in the collision. It alleges (A.\%.,

12-13) that from 4 P.M. on July 28,:1956 to after mide

‘night of said day, Chicago’s Last Department Store, -the*

Saxners and Turbin sold and furnishéd intoxicating liquor

to Sims and Owens, when they were intoxicated, and thus -

did contribute to their said intoxic&tion, the liquor being:

furnished in large quantities both by the glass and by

_carry-out bottles, which intoxication resulted in and was

“the proximate cause of severe personal injuries and loss

of means of support tothe plaintiff.

°“A A.” refers to appellants’ appendix in the Court of

Appeals.

A eee

’ “ _ . : nn » 4

“A motion to dismiss the cause CALA, 19-20) was made .

~ hy the Saxners, while Chicago’s Last Department Store

and Turbin meved for judgment on the pleadings (ALA,

20-23, and 24-26). The principal ground relied on in all

three motions was that neither the Illinois Dram Shop

Act nor the: Michigan Liquor Control Act applied, be-

cause the sale occurred ‘in Illinois while the injury took

place in Michigan, and neither Act has any extraterritorial

effect (A.A. “20, 21, 25). The motions for judgment on

the pleading -raised the - further point that the complaint

did not state a common ‘law, cause of action on the ground

that ‘tthe common law gives no remedy for injury follow-

ing the sale of intoxicating beverages to an ordinary man”.

and on the further ground ‘that the IMlinois Dram Shop

Net has preempted the field, precluding common law

liability: (ALA, 22-93 dnd 25). aw | |

The US. District Court, Joseph Samuel Perry, J.

entered a order sustaiming Saxifers’ motjon to dismiss

on the basis of the decision in Eldridge v. Don Beach-

comber, Inc.,”342 Ill. App. 151, 95 N.E. 2d 512 (leave to

appeal denied, 346 Ill. App. XIV), which he ld that Ili-

nois Dram Shop liability does net arise where ‘the salé

of liquor-oceurs in Hlinois but the injury occurs in an-

other state, and dismissing the cause, on its own motions as

to the other defendants (A.A. Bh). Piaintitls apt vated,

' Judge Schnackenberg’s opinion for the Court: of Ap-

peals (Appendix A,.tnfra, pp. la-Sa) affirmed the District’

Judge’s view that neither the Tilinois Dram Shop Act nor

the Michigan Liquor Control Act applied extraterritorially

_ to. the situation, but held that, on the allegedg facts, the:

injured parties: had a common law right of action against

the defendant liquor vendors. o* NS

The court rejected the defendants’ argument that the

Milinois ‘Dram Shop °: as “preempted the field”, pre-

¢

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cluding common law liability, and held that the %ommon

~ law of Michigan as to tort liability was controlling (id.,

-unfra, pp. 3a-da).. The court stated that common Jaw —

liability was created because’ of the cireumstances that

the sales in question were ‘‘not usual sales to-adults or

- ordinary men” but ‘‘were sales*to intoxicated gesesgll A

and “were not sales to ‘a strong and able-bodied min’ as

referred to in Manthei v. Heimerdinger, 332 Ill. App. 335,

352, 75 N.E. 2d 132, 140, relied on by defendants”; and

because Section 131 of the ‘Illinois Liquor Control Act,

which provides for criminal penalties for sales of aleo

-holie liquor to-an intoxicated person, imposed a duty on

defendants. which they breached’ in making the sales in

question (id. infra, p. 5a). | i

Judge Knoch wrote a dissenting opinion (id.; tafre, pp.

7a-Sa), upon the ground that the statute relied upon by the

majority is a penal statute which does not create a civil

right of action in tort. He further declined to accept the

majority’s distinction that an ‘intoxicated person. is not

an “able-bodied man”.

REASONS FOR GRANTING THE WRIT.

This is a case of novel impression. Although not

all by plaintiffs in their briefs,‘ the court below, in—

its apparent compassion for them, held that under - the

circumstances of the case they had a common law right

of action against the defendant liquor vendors. This hold:

-ing that there is a common law cause of action against

one who unlawfully sells liquor to an intoxicated person

in favor of those injured by the intoxication of the per-.

.

‘ Plaintiffs’ brief in the Court of Appeals-is not part of

the record. However, their brief in the District Court in

answer to defendants’ several motions to dismiss and for

j 30 on the —— appears in appellants’ appendix,

pp. 27 .

22

a . : . “n

son so sold, represents a departure from settled common, .

- law doctrine, previously adhered to by all state as well as

federal courts, by an unbroken line of decisions, and pre-

sents an important and serious conflict in the law war-

ranting resolution by this Court. It is to be especially

noted, in this respect, that in a per curiam ‘opinion,* de-

cided before, but released for publication after the publica-.

_ tion of the F aeaea in this case, the Hlinois Appellate Court

reached a decision: which appears diametrically opposite

“rom. the. decision: below, ‘In arriving at such an adverse .

result, the court beiow violated flie rule of this ‘Court that

Federal courts must apply applicable state law, and created

thereby, inthe exercise of its diversity of citizenship juris-

diction, seridgys diserimination hetween non-citizen and citi-

zen, in derogation of constitutional cuarantees ‘of equal

protection of the law. The decision below ix important not

‘only because of the conflict and discrimination created and

the many provocative questions’ it raises, but also heeause. -

of the unprecedented and calamitous results which are

fikely to flow from it.

The decision below is sure’ to have a great impact on

the liquor selling industry by greatly increasing the risks

and hazards ofthe business. Before the decision, there

‘Busser v. Noble, et al., 22 Ill. App. 2d 433, 161 N.E. 2d

150 (Judgment entered April 29, 1959, rehearing denied

October 7, 1959, opinion released for publigation. October 7,

1959). For a complete discussion of this case see this peti-

tion, infra, pp. 14-15. : .

‘It raises such questions as to what is the period of limita-

tions in.such a common law action (the period of limitations

_in most civil damage statutes, as in the Illinois statute, being

just one year) ?, who can bring such an action?, and what

types of injuries are conipensable in such an action—bodily

injury, property damage, loss of support, death (there being

- no common law action for death or loss of. support)? =~

cao %

was -generally, considered to be no remedy for damagesg

_ against a‘vendor of liquor, in states which had no civil

damage statutes; and in those states which did have such

statutes, the statutory right of recovery was considered to

be exclusive. Since persons desiring to operate businesses

which sell liquor to the publie had to concern themselves

only with statutory liapility, they were able to protect

themselves from the risks of such ventures, by so. called -

‘dram shop” or “liquor liability” insurance which covers

‘only liability from suits under dram shop or civil daniage

statutes. The- decision of the court below, however, has

created a vacuum for vendors of liquor, so far. as insur-

ance coverage is concerned under available and existing

; types of arteries sontenets. ‘The available “dram shop”

or “liquor liability ’ insurance does not cover common law

liability ;* pes does so called “publie liability” insur-

ance Which generally excepts from its coverage, liability

resulting from the sale of liquor.

Not only” hee’ the decision of the court below cre: ated

oa

w kind of liability: against vendors of liquor in. states.

which have no civil damage statutes, but, if allowed to _

stand, may result in common law suits ultimately -replac-

ing Gram shop suits, to a great extent, even in state-

which’ have civil damage suits. In respect to the amount

of reeoy ery’ allowible,* the preference of injured-partir=

would undoubtedly be in favor of common lawsuits. To

be sure, the court below sought to give common las

5s Upon satan of the present case to the trial court,

defendants” counsel (who were retained by defendants’ dram

shop insurers) sought and’ obtained leave to withdraw upon :

the ground that defendants’ dram shop policies do not cover

such ‘a “common law’ risk.

* The limits .of each person injured under the Illinois Dram

Shop Act (Appendix E. infra, pp. 12a-13a) is $20,000. 00.

— vo

redress because of the situation that the liquor was sold

in one state and the-injury occurred in another state,

\

but the effect of the decision is not to. limit\it to ‘situa-

tions where state boundary lines have been crossed and.

it would appear to apply equally as “well to intra state.

situations. It is also true that the decision is limited to

circumstances wheré sales are made to intoxicafed per-

sons, in violation of penal statutes, but this is g limita-

tion broad enough in ‘scope*to allow common law actions .

- in a multitude of situations. Penal ‘statutes, prohibiting

the sale of ‘intoxicating liquor to intoxicated persons;

minors and habitual drunkards, are quite common and

in effect in many states.’ Furthermore, hardly a situation

of injury resulting from the ‘intoxication of a vendee

could arise, where it could not be alleged that the sale

was made to the vendee while he was intoxicated. Intoxi-

cation being descriptiveof a physical and mental state

and nothing maxed becomes a question of fact. as to-

whether the vendee was infoxicated when w sale: Was .

made to him. Conceivably a drinker could become intoxi-

cated from his first drink of liquor, so that a sale of

the second: drink avould be subject to the allegation that.

the sale was made to an intoxicated person,

® ‘The case§ are overwhelming—to-the-effect that at

1A few examples are California which makes a-sale to.

minors unlawful (see Fleckner v. Dionne, 94 Cal: App. 2d

246, 210 P. 2d 530); Wisconsin which has a penal statute

prohibiting sales to minors (Wis. Stat., sec. 176.30[1]) ;

Tennessee which makes it a misdemeanor to sell intoxicating

common law it is not considered: a tort to sell intoxi- -

liquor to, any husband who is a habitual drunkard after |

* prohibitory notice (sée Riden. v. Grimm, 97 Tenn. 220, 26

S.W. 1097) ; and Michigan which makes it illegal to sell to-

any person in an intoxicated condition (see sec. 29 of Act

388 of Public Acts of Michigan. 1917, as amended, being -

Sec. 18.1000 of Mich. Stat. Annot.) ‘

—~ = 10-

eating liquor to ordinary. able- ‘bodied men, and that there

is no cause of action against a vendor of liquor in favor

of those injured by the intoxication. of the vendee.* The

obstacles to the maintenance of such action at common

law is (1) that it is not ordinarily actionable negligence

‘ to sell intoxicating liquor and (2) that the sale is not

deemed to be the proximate cause of the injury.’ Recov-

ery is usually denied on the ground that‘the drinking

of the liquor, rather than the furnishing thereof, was the

proximate cause of the injury sustained.’ In those state-

. -not having civil damage statutes, a feW cases have al-

lowed recovery, such as Pratt w Daly, 55 Ariz. 535, 104

P.-2d 147, and Swanson v. Ball, 67 S.D. 16%, 290 N.W.

482, where there is established a special duty toward. per...

sons having a peculiar interést in the buyers of intoxi

cating liquors," such as a wife for her husband, but thes

are inapplicable to the case at issue.

*30 Am. Jur., Intoxicating Liquors, secs. 520 and 521:

Cherbonnier v. Rafalovich, 88 F. Supp. 900; Beck v. Groe, 245

Minn. 28, 70 N.W. 2d 886; Kingen v. Weyant; 148 Cal. App.

2d (Adv..p. 686),-307-P. 2d 369; Cruse v. Aden, 127 Ill. 231.

-——— 20 N-E. 73; Howlett v. Doglio, 462 Til. 311, 83 N.E. 2d 708;

Demage v. Feierstein, 222 Wis. 199, 268 N.W. (210 (and .

many other cases cited therein.).

*See 130 A. L. R. 352, 358. -

'° See Cherbonnier. v. Rafalovich, supra; ites « Dionne.

94 Cal. App. 2d 246, 210 P. 2d 530; Beck v. Groe, supra:

Belding v. Johnson, 86 Ga. 177, 12 SE. 804.

‘* These cases allowed recovery by analogy to cases (Flan- ,

dermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102; Moberg

'v. Seott, 38 S.D. 422, 161 N.W. 998) involving the sale of

habit forming drugs to a hugband after the wife had pre-

_ viously given prohibitory notice to the druggist. The ra-

tionale of these cases appears to be that the wife, by giving

notice to the tayern keeper not to sell liquor to the husbarid:’’

imposes upon the bartender a duty owing to the wife to look

after the w fees of his inebriate patron. If the saloon- ©

keeper, having been warned by the wife, has actual knowl-

edge of the patron’s alcoholic tendency or lack of volition

4

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pam

‘It is contended by the court below that the case at

- issue is not within the sphere of the established common .

law rule, as it is alleged in the complaint that sales were

made to intoxicated persons, and intoxicated persons are

not “ordinary” or “able-bodied men” (Appendix A, infra,.

p. oa). This is ‘not a valid distinction, however. As:

~~ pointed out by Judge Knoch, in his dissenting opinion,

such a distinction “would, in effect, eliminate any reason

for the enactment of the Dram Shop Act” (id., infra,_-

p. Sa).

Furthermore, it is apparent, from reading the decisions .

which established. the common law rule, that the courts

did not intend to exclude .intoxicated. persons from the

category of “ordinary” or “able-bodied men”. There is _

. . if : , @, . =

not a, single case, so far as we can find, which, has -hetd

‘ a liquor vendor-liable to those injured by an intoxicated

person, on the mere allegation that the vendor made

repeated sales to him or sold to him while he/was intoxi-

cated, éven where the liquor was sold ip’ violation of

law. The only persons meant to be excepted from the

designation of “ordinary” or “able-bodied men” are those

_ who are nan compos or who have permanently lost the

volition to resist liquor, such as habitual drunkards.” An

'* (Continued) . |

_to refuse to drink, he negligently breaches the duty to the

wife by disregarding her request and selling liquor to the

-husband, from which the latter became intoxicated. |

\ In-the same category are the few cases (e.g. Peck v. Ger-

ber, 154 Or. 126, 59 P. 2d 675 and Schell v. Vergo, 166 Misc. :

389, 4 N.Y.S. 2d 644) holding tavern keepers liable for in-

juries to their patrons on the theory that they owe a special

duty to them to see that'they are not injured by intoxicated .

persons while they are on their premises. ene,

' 2 For a discussion of this, see Cole’v. Rush, 45 Cal. 2d 345,

289 P. 2d 450. coalalis ;

rf

t

aie

“able-bodied and healthy”. petson has been defined as one

in “ordinary health and strength in his usual and habitual

condition” (italics ours). Town of Starksboro v. Town

of Hinesburgh, 15 Vt. 200, 209. This would not’ exclude:

a man of ordinary health and strength who is on the

_oecasion in question intoxicated.

Aside from: the fact that the penal statute (see. 131,

Ch. 43, 1959, Illinois Revised Statutes), which makes sales

to intoxicated persons unlawful, on which-the court below

relies, does not confer any rights for’ civil damages (a-

. pointed ‘out in the dissenting opinion), it does not impox«

any duty on defendants toward the plaintiffs. °

-The court below acknowledges that there is no action.

able negligence at common law unless there is a failure

of one owing a duty to another, but holds that this pen: ey

_ statute imposed a duty on def@@dants which’ they breached

in making’ the sales in question (Appendix: A, infre. -

_ pp.-Sa-Ga). This amounts to a finding that-a breach of thi-

_ penal statute is “negligencé per se” or, “negligence as 2

matter of law.” We concede that some jurisdictions (and

Michigan is among them) adhere to the rule ‘that the , -

violation of a penal statute may be “negligence per. :

but only as to those persons for ‘whose skal 0)

benefit the statute was enacted:* Oné who bases his righ!

of recovery for negligent: injury on-a’ violation. of a

statute must not only show a breach of duty ‘impose!

hy the statute but he must also show that the person

‘

\

»

13 38. Am. Jur., Negligence, sec. 158, note 21; Zajkowski v.

American Steel & Wire Co., 258 F. 9, 12, 6 ALR 348; Steele

v. Commercial ne Co.,.50 F.. 2d 1037.

—

- re —13 —

injured ¢amé within the purview of the statute”* The

Illinois Liquor Control Act, of. which said section 181

"i$ a part, proclaims its purpose in section 94,"° whith

. declares that the “act shall be liberally construed, to the

end that the health, safety. and: welfare of the People

of the State of Illinois shall be protected. . . a (italics

ours). It. is clear then that this statute imposes’ a duty

for the protection or benefit of Illinois residents only

and gives no right of action to plaintiffs who are resi-

dents of -Michigan. ,

‘Furthermore, the doctrine that the violation of a penal

statute may be “negligence per se” toward persons for

whose protection and benefit the statute was passed,

' wherever followed, is always subject to the doctrine of:

“proximate cause”. It applies only. where the injuries’

were proximately produced -by the act of violating . the

‘penal statute—that is, where the injuries arose directly

from the chain of: causation set in motion by the act of

violating the penal statute, provided no independent. act

has intervened which was the real cause. of the injury.

38 Am. Jug. Negligence, sec. 158, note 21; Holmes v.

Merson, 285 Mich.. 136, 140, 280 N.W. 139; Warwick ¥.

. Blackney; 272 Mich. 231. But at corgmon law the drink;

ing of the liquor—not the furnishing of it—is considered

the proximate cause of injury suffered by third parties

from the intoxication of the consumer.” For this reason

‘4 1 Ill. Law and Practice, Negligence, sec. 31; Brunnworth —

v. Kerens-Donnewald Coal Co., 260 Ill. 202, 103 N.E. 178;

-Seghetti v. B. F. Berry Coal Co., 186 Ill. App. 263; Gibson

_v. Leonard, 143 Ill. 182, 32 N.E. 182 (city ordinance adopted

for benefit of employees gives no right of action to injured

‘person who is not employee.). -. ~ ‘ eee

6 Sec. 94;:Ch. 43, 1959, Hlinois Revised Statutes.

14 See citations in footnote 10, infra, p. 10.

“—14—

- it. has been consistently held that there is no cause’ of

action against the vendor of liquor in favor of the

‘injured party, even though the liquor was sold in Viola-

tion of a penal statute.”

In states having civil damage statutes, allowing recov.

ery of damages from the supplier .of intoxicating liquor

by those who sustain injury, the courts have uniformly

held that no action.for civil damages exists except that

given -by the civil damage statute, and thgt the remedy .

prescribed by such statute cannot be enlarged except by

further legislative: enactment. The decision of,the court

helow in ‘this case is in direct conflict with that prévail-

ing view.

The recently published per. curiam opinion of. the Nee-

ond District of the Illinois Appellate Court, in Busser v.

Noble,-et al., 22 Il. App. 2d 433, 444, 161 N.E. 2d 150,

- 155, poignantly ponte up this ee. sis In several counts

‘* Busser v. Noble, 22 mn. Aue. 2a 443, 161 N.E. 150 (sale

io a minor, in violation of sec. 131 of the Ill. Liquor Control

-Act—-the same penal statute under consideration in the case:

at issue) ; Rogers v. Dwight (U.S. Dist. Crt. E.D. Wisc.), 145

F. Supp..537 (sale to a known habitual drunkard, in viola-

tion of, sec. 131 of the Ill. Liquor Control Act—the same

penal statute under consideration in the case at issue);

Fleckner v. Dionne, 94 Cal. App. 2d 246, 210 P. 2d 530 (il-

: legal sale to a minor); Seibel v. Leach, 233 Wis. 66, 288

’ N.W. 774 (unlawful because made to a minor and intoxi-

cated. person); Waller v. Collinsworth, 144 Ky. 3, 137 S.W.

766 (violation of law in selling to minor and in selling in

local cption territory); Britton v. Samuels, 143 Ky. 129, 136

S.W. 143, 34 LRA (NS) 1036 (where sale unlawful becinise

‘made in local option territory).

178 While the present case was based upon alleged sales. to

intoxicated persons and the Busser case was based upon al-

. leged sales to a minor, the prohibitions are contained in the

- same- section of the Illinois Liquor Control Act (sec. 131,

ch. 42, Ill. Rev. Stat.). Accordingly the two cases appear to ~

reach diametrically opposite results. ~ |

‘ 5 a2 P -

—b—

“of the complaint plaintiff sought to rgcover amages

from several tavern keepers, for personal’ injuries re-

“ceived in an automobile collision, on the ground that they.

‘sold intoxicating liquor -to a minor in violation of the

penal statute ¢see. 131, ch. 43, Ill. Rev. Stat.). The trial

court directed a verdict in favor of defendants ‘with

respect to the counts. predicated upon said section 131

and the Appellate Court in affirming said :

“The question whe ‘ther a verdict should naive e. 1

diree ‘ted upon the counts based upon section 131 of

the dram: shop law prohibiting the sale of liquor to

minors, also poses a difficult problem which appar-

ently Ras never been passed upon by any court of

review of this state. The closest case ‘which has been -

called to our attention is that of Rogers v. Dwight. .

145° F. Supp. 537, wherein the court was called upon

toconstrue the Hlinois law and to decide whether a

complaint, based upon section 131 stated a -cause of

action. The court held that a complaint based upon

<aid section did not state a cause of action and that

section 135 of the dram shop law/affords an exclu-

sive remedy. In Howlett y. Doglio, 402 Ill. 314, the

Court indicated that reeovery under section 135 is

exelusive. By way of analogy, in Hall v: Gillins, 12

II]. 2d 26, the Court declined to. permit a death

action to be brought as an action at common law

rather than under the wrongful death statute. For

these reasons we hold that section 139 affords ‘ex

clusive remedies for* damages under the. dram cho?

a’: and gat the circuit was correct in directing a

rdiet, for. defendants in counts VI, VII and XL."

In B8 gers v. Dwight, DC. (Wis.), 145. FP. Supp. “537,

a case factually ' ‘close to the present case, and referred |

to in ‘the Busser case, supra, the ‘court held that the

remedy provided in the Illinois Dram Shop Act (see. 135,

Ch. 43, Ill. Rev. Stat.) was exclusive and excluded an

P - os)

e ; R

«$<

action for civil damagés under the penal statute (scc.

131, ch. 43, Ill. Rev. Stat,). One count of the suit in-

volved a complaint by a mother and daughter, whecwere ~

_ apparently residents of Wisconsin, against Illinois tav ay

_ keepers for damages suffered from lack of support, by

_ reason of gales_of liquor to the husband, and fatlier, in .

violation of the provision in said section 131 which pro-

‘hibits sales to habitual drunkards.

The court, in said Rogers v. Dwight case, said:'*

“Defendants : contend ‘that Count II of the com

plaint does not. state a cause of action in that See.

. tion 13k, Chapter 43 of the Illinois Revised statute

is penal and does not provide for damages in a civ!

_ action, and that nd such cause of action as plead!

existed at common law. It is the court’s view that

the contentions of the defendants are valid and tha!

- Count IT should be dismissed for failure to state «

claim upon. which relief could be granted.

“Although the Illinois courts apparently have*never

directly considered this issue, the Illinois courts have

recognized that the common law gave no cause*o!

action against a dram shop keeper for the intoxi

_eation of ‘a patron, either’ on the ‘theory of: a direct 4

_wrong or on the ground of negligence. Kreps \.

D’Azostine, 329 Il). App. 190, 67 N.E. 2d 416. To the

same effect is Economy Auto Insurance Co. v. Brown.

supra, in which the court.stated that the Dram Shop

* Act conferredUtwo separate and distinct causes o!

_ action unknown at common law against persons whi

may have caysed the intoxication. Civil damage acts

which afforded practically no ‘remedy. 30 Am. Jur.

Intoxicating Liquors, sec. 612. | : ‘ey

9

"145 F: Supp. ‘687, 540. °

‘ead, ae

>

!

‘were passed to supply a defect in the common law - ,

“Section 131 as “quoted heretofore is a regulatory

or penal statute and is shortly followed by Section °

135, the Dram Shop Act. /f! Section 134 gave a cause

of action for civil damages, then Section: 135 was

— and is superfluous, (Emphasis supplied.) In Howlett

v.\Doglio,. supra, the court. stated Whative fo Sectiofi

»135:

‘The liability |inipased and the nature of ‘the

“ damage recoverable is of astatutory origin, and

is expressly and exclusively defined in the ‘Dram

Shop Act.’ i

-. The Court went ons to say: 7

-

‘Application of basic principles of , statutory

construction forbids an enlargement. of the ¢lassi-

‘ fication. of actionable injuries -under the Dram

» Aet. (Emphasis supplied.) A (oFollary to

the rule that the enumeratiom of certain things.

in a statute implies the exelusion- of all ‘other

things is that all exceptions or restri¢tions other

than - those. designated are «excluded under the

rule expresso anius excluso alterious.’ ;

“It 'is the decision of this Court that since the [lli-

nois legislaturegrart Ua new cause of action which

‘ e

had not prev ‘iously vay ‘ediat common law, the remedy.

provided there in is anise cclusive remedy and excludes 3

any action for civil de wages under. Section 131.”

(Emphasis supplied. i ~

In Demage . Feierste in, 222 Wis. 199, 268 N. W. 210,

where the widow ‘of the deceased brought . an action |

against a tavern, keeper, seeking to recover damages for

the sale of intoxicating liquor to her deceased :husband,

in violation of a. penal.statute which makes it illegal to

sell to an intoxicated person, alleging that she requested

the bartender not to sell liquor, to her husband who was

then in an intoxicated conditio# but thatt he continued to

x

A em

ed to state

do: so, thes court hetd that:the complaint f

a cause of actions and remarked :””

4

. oa ° e

“In view of the common-h rule, itcias been nece-

sary, Where opinion favored the creation of such :

cause of action, to enact civil damage laws... .

“The contention that civil damages resulting fret

* the violation of see. 176.55. (penal statute)* may |e

recovered upon some common law prinéiple cannot be

sustained. Sec. 176.95. (civil damage statute)/-com: '

pletely deals «with the rights of action against the

vendor of liquor by those sustaining damages is 2

result of intoxication following the sale. *

. In Seibel ve Leach, 223 Wis, 66, 288 NW. 774, Where

oH vintift sought’ to impose’ civil-diability on. the basis 0!

that part 6f the Wisegnsin penal statate Which prohibit

* Py eeas y Y

sales to intoxicated perséns, the court approved wha:

was ruled in the Dewage case, and illustrated its reluc

> tance to allow civil damages in such cases bythe follow

,ing statement of. its opinion :° \ @

“Courts may in proper instances apply old) rules’

to newly ‘created conditrons, but théy cannot create

new rules for ¢onditions sc a regulated.”

‘In Healy v. Ca dy, 104 Vt. 463, 161 A. 151, 152, a ca-«

brought under a civil damage act, the court stated:

e

“The stajute was enacted to compel those who wil)

hazard causing damage by ‘furnishing intoxieatine

liquor to others to answer for such damage to thos»

who may suffer it. It created a remedy for wron:

where there was none before... .- + |

229 Wis. 199, 203, 268 N.W. 210, 212.

“233 Wis. 66, 68, 288 N.Ws 774, 775. ~ °*

eae | 4g S19

“It should: be borne 41 mind, too, that this statute

a hy necessary implication ‘changed the common Jaw

rule of proximate cause. which cbtains in other. tort

- actions...) ° ¢.

In Kennedy v. Garrigan, 23 S.D. 265, 121 N.W. ‘783, 785,

the court said > ef.

* .

“No. right ‘of action exists save that expressly

~-viven by the statute, and the Femedy preéseribed can-

not be enlarged except -by further legislative enact-.

ment... 2” as CE j

Under the now weil established rite laid @lown by Erie

R. eo &. Tomplins, O04 US, 4/98 S. CL SIT, that federal

courts must follow applicable: state law, and subsequent |

decisions elaborating on saidrule, the court helow was not

free to dispegard the Plinois common law: rule applicable

to the situation, which has prevailed for many years and

was finally confimoed and proclaimed with certainty in the

"cnid recent case of Busser v. Noble, 22 MW App. 2d) 455,

IG) NES 2d 1202 Phe Court below reached the eonelusion

that the common haw ef Miehigan was applicable to the

situation by decisions of courts other than’ Hlineis: evurts

(Appendix A. iufra. pe Gai. This wes in violation of the

well settled rule that. under the doctrine of Erie Re Coey.

Tompkins, supra, federal courts, when decidines questions

af confliet of laws in diversity of. citizenship eases, must

fottow the rules prevailing in the state in which they sit.

See 2) ALR 2d 247, 251 and the numerous cases cited

Q

“It has been firmly established that the rule of Erie R.

Co. v. Tompkins applies ‘to decisions of intermediate state

courts as well as to law expounded by the-highest court of

the state. See e.g. Fidelity Union Trust Co. v. Field, 311 USS.

730, ‘61 S..Ct. 438 (rehearing denied in 314.U.S. 709, 62

S. Ct. 118) and West v. American Teleph. & Teleg. Co., 311

US, 223, 61 S. Ct. 179. De

-

‘“ @ tan — 20 —

therein). Under Illinois law, the conflict of laws rule re-

quires the application of the law of* the state where the

_aet, claimed as the basis of a tort, occurred, in determin-

ing ‘whether there is’ a tort as: a legal consequence, or

whether the conduct was of a tortious character. Ferro.

line Corp. v. General Aniline & Film Corjg. 207 F. 2d 912.

certiorari dénied 347 U.S. 979, 74-S. Ct. 784and 348 U.S.

- $51, 75 S. Ct.19; Addressograph-Miultigraph Corp.v. Amer

‘ican Expansion Belt & Manufacturing Co., S16 U.S. 652.

G2. S. Ct. 1270; Smith y. Draro Corp., 203 F.2d 369. The

acts claimed as a basis for the torts in the present. case

are the acts of selling liquor -to intoxicated persons in vio-—

lation of an Illinois penal statute—acts ‘which occurred:

exclusively in Ilinois. The wrongs, if such they. be,-were.,

the sales in Illinois, andthe court below should have ap-

plied Illinois law.

ut even if Michigan law were properly applicable, the

decision of the court below would nevertheless be in viel;-

tion of the Erie R. Co. v. Tompkins, supra, rule. The court

helow does not set forth any convincing reasons to ind!-

eate that the common law of -Mie higan: ix otherwise than

the general common Jaw principle applicable to the situa-

tion which all other states adhere te. To the contrary, the

fact that the question has apparently never been passed

upon by any Michigan Court of review, is an indication

that the applicable law of. Michigan is not different from

- the settled common law rule followed by other states. In

the guise of gnterpreti ng the law of Michigan, the cour!

helow! has really given its own concept of what it think-

the law of Michigan should be, not what it is. This is a

“reversion to the doctrine of Swift v. Tyson, 16 Pet. 1

' (1842), which’the case of Erie R. Co, v. Tompkins. supra,

overruied.

c%

‘ ] Se

This disregard hy he court helow ot the common law

rule of Hingis, in dec idine the question at issue, has cre-

ated pre retical problems of great importance in the uni-

form administration’ of justice. Ef the decision would be

allowed to-stand, there would be one rule for litigants who’

bring the issue before state courts and another rule for

litigants. Who brine the exme issue before Federal Courts

owing to the eiremmstances ol diversity of citizenship. A.

pointedsoxt by thes Court ta Erle 2. Conv. Tomphing 304

[2 Ob, TINO, as S.Ct SIT, S20-82. bisa would introduce

wrave discrinunation by Non. cit) ra auainst ccitizens”.

render “hinpogetble «xu prote: dion of the nw" and. pre-

vert “uniformity; ay UL administration of the law of a

1

** , . re ae : ‘

state’, thereby drivadifig “rights whieh ire reservedeby the

constitution te the several states.

| CONCLUSION. . §«

| : |

The question on diability of tavern ‘keepers in ‘ases

like the mies a is an imjlortant state question, because

iteinvolves a det rmination ais to Which is deserving 0!

the most protection—the yroperty interest of a tavern

keeper froin rather >tringent liability as against the per

sonal and property interest:

hy intoxicated persons.

iaw, state courts have left

lecided by the legislature.

sy well settled principles ol

this iniportant question to be.

According to applicable state law, if, it is deemed

desirable te impose such stringent liability. on) tavern

“keépers for the benefit of the public,’ the legislature must

enact a. civil damage act broad enough: to sheltt rosuch

people as the plaintiffs in this cage.

at ee ai

of the public fromm’ invasion”

socially

Y

— 22—

The: decision below-7s-in--directs conflict with this pre.

vailing view, because it created liability for tavern keep.

ers in cases like the present by judicial interpretation.

In doing so it has violated the rule of this Court that:Fed.

‘eral Courts must follow state law, introduced serious dis-°

crimination by non-citizens against. citizens, unsettled the

entire concept of tort liability on the part of furnisher.

of intoxicating liquor, and create d many important prob-

lems in that field. . :

-The petition fora writ of cértiorar: should be granted.

: Respectfully submitted, 5 «©

HaroLp OrLINSKY

Morris Saxxge

—~s Counsel for Philip Saxner and

‘Rubin Saxner

Seymour’ J. LaYFrer—

Counsel for ene: s Last Departmen

Store.

_ January 1960

=== 1@ t=

APPENDIX A.

e P

_

ee .

IN T HE

ENITED STATES COURT OF APPEALS

For Tue Seventu Circvit

“@

No. 12563 ‘Sepremper Term, 1958, Aprit Session, 1959.

9

a

Mary ANN Waynick, et aly. : iinent ices mn

Plaintiffs-Appellants, ~ Inited States Dis-

a ee Se: A > trict’ Court for the

Cyicaco’s Lasr DerarTMeEN’? STORE, Northern District

an Hlinois corporation, et al. . of Illinois, East-

Defendants-Appellees. ) ern Division.

+

Jury 20, 1959

Before SCHNACKENBERG, ‘Kwocn and CasTLE., Circuit

Judges.

SCHNACKENBERG, Circuit Judge: In a diversity action,

tiled in the district court at Chicago, Illinois, by citizens

and residents of thé state of Michigan against citizens

and residents of the state of Illinois, plaintiffs Mary Ann

Waynick, Wilma Ann Scruggs, and Carl Mack. W avnick,

Linda Kay Waynick, Nellie Sue Waynick and Aice_Faye

Waynick, minors, by Mary Ann W ‘aynick, their mother

‘and next friend, sought recovery of damages sustained by

them, when an automobile under the control of Bruce

Sims, its owner, and driven by Johnie E. Owens, collided

on U.S. Highway 112 in the state of Michigan. with an

automobile driven by William Gerald Seruggs, who was

killed in the collision. Plaintiffs’ complaint named as

— 2s --

defendants Chicago’s Last Department Store, an Illinois

corporation, Philip Saxner and Ryin Saxner, doing busi

hess as Phil’s Tavern, and William Nurhin, doing busine-

-as Matlan Liquors; who were engaged in the business of

. selling and ee intoxicating liquors in the state of

Illinois.*

It appears from the complaint that Chicago’s Last De-

partment Store’s premises are situated’ in Chicago, Illi.

nois, near the Ipdiana-Illinois, state boundary, where ‘said

defendant has a large-parking lotcwnd caters to drive-it-

~trade and extends an invitation to persons upon the public

highway to purchase its wares, and that said defendant

permitted said Sims and Owens to consume a large quan

tity of intoxicating liquor in its parking Tot. The complaint

further alleges that from 4 P.M. on July 28, 1956 to afte:

midnight of said day, defendants Chicago's Last Depart.

ment Store, the Saxners and Turbin sold and furnished

intoxicating liquor to Shas and Owens, when they we:

intoxicated, and thus did contribute to their said jntoxien

tion, the liqugr being furnished in large quantifies .bot!:

by the glass and by carry-out bottles, which intéxication

resulted in and was the proximate cause of severe per

sonal injuries and loss of means of support to_plaintiff-

The Saxners moved to dismiss ‘the cause, for failure of

the complaint to state a claim, while Chieago’s Last Dv

partment Store and Turbin moyed for judgment on th

pleadings, on several grounds, including the following:

“4. Insofar as the plaintiffs’ grievances are predi

eated upon this defendant's violation of a°ecommon Jaw

duty, if any, owing by it to plaintiffs as is implicit)

asserted i In “‘paragtéphs 12 and 19, the complaint fai!-

to state a cause of action against this defendant be

cause :

1 The complaint also mend a het Harold Harris.

lessor of said Phitip Saxner and Rubin Saxner, doing business

as‘ Phil’s Tavern, and Marie Movilli, lessor of said William

: Turbin, doing business as Matlan Liquors. Said lessors pave

not ecousen in this court on \ appeal.

_

“a. At common, law it is not actionable to sell aleo-”

-holie liquor to dan adult; the common law gives no

remedy for injury following the sale of intoxicating

beverages to an ordinary man. ,

b. ° Having created a right of action by enacting

- the Dram Shop Act, the General Assembly of Tllinois

- has preempted the ‘field.” : |

rom the eourt’s order sastamnag défendants): motions,

_.. plaintiffs:have appealed. They rely for relief, in the alter-

‘native, on dl) So 22 and-29.6fthe Michigan Liquor Conttol |

Act,? (2)4 14 of the Hlinois Dram. Shop Att; oor-+3}).-the

common law,

It is our view that plaintiffs’ reliance on eithér the

Michigan act or the Ilinois aet rests upon such dubious:

crounds that we are impelled to reject those acts as a basis

for our decision in this case.” That leaves for us to decide

whether the common Jaw supports plaintiffs’ cause of

action. Before considering that question, we feel it proper

to point out that the’ Iinois Dram Shop A¢t has been held

net to apply extraterritorially to a situation where the

<ale of intoxicating liquor takes place in Hlinois and the

injury resulting therefrom occurs in another state, E/d-

ridge v. Don Beachcomber, Tne., 342 Wh App. 15d, 14,

leave to appeal denied, 346 Tl. App. xit. Tt appears to us

that it-is also probable that the: Michigan Liquor Control

Act is not applicable where a sale of intoxicating liquor in

Iinois produces injuries in) Miehivan. Defendant gsc

argue in this court and cite a Michigan court decision to

support their contention. It would. seem to follow that

the practical consequence of denying extraterritorial effect

to such acts is to beave a vacuum in the law insofar as

unlawful sales of §ntoxicating liquor in ene state produce

injuries to third persons in another state. Certainly the

position of defendants in this court is that the liquor can.

trol acts of HMlinois and: Michigan do not cover such a case.

213 Mich. Stat. Ann. (1957) (18.993 and 18.1000..

'* 135, ch. 43, R.S. Ill. 1951. :

—

— )

It seems ‘to us, therefore, that, their contention that tie

Iinois Dram Shop Act has “preempted the field”, is un.

sound. Rather it would appear that the Act has avoided

the field, rather than preempted it. If the common law . ‘

does not cover the situation before us, there is actually no -

law applicable. As Aristotle said, nature abhors a vacuum:

so does the law, Lest we too hastily reject the claim ot

these plaintiffs for pecuniary redress for death and in

» Juries sustained in what was evidently an appalling aut

“mobile accident, we turn to the common law, which is in .

_. effect in the.state of Michigan where the injuries oceurred

The law of, that. state governs the tort liability asserted

by plaintiffs herein. “As was said in 1: 33 A.L.R. 263:

where the question relates to the choice be-

| tween the law of the place where the negligent act or

omission took place and the law of the place where

the injury or death or both-were inflicted, by the al-

most unanimous consensus of decision the place of the

tort, within the contemplation of thé rule that the law

__of the situs of the tort governs the liability and sub-

stantive matters, is the place where the injury or ~

death was inflicted and not the place Ww here the neg:

gent act or omission took place.”

‘In Stout v. Keyes (Mich.) 2 Douglas. 184, 43 Am. "Dee.:

465, at 467,.it was held that the common. law applies.in -

‘Michigan and that ~ ,

oe @ *

.

a general prineiple of the. common law, that

whenever the law gives a right, or eee an injury.

it also gives a remedy by action; * * *."

The injury having -oceurred in Michigan as a result of

defendants’ acts in Illinois, the common law of Michigan

as ‘to tort liability controls,

The sale of intoxicating liquors to Owens and Sims was:

unlawful when made. in Illinois, according to the applicable

Illinois statute, § 1, ch. 48, RLS. TIL 1951, which pro.’

vides :

be

—- 54 — rie ‘

‘‘No licensee nor any officer, associate, member,

representative, agent, or employee of such licensee:

shall sell, give or deliver alcoholic liquor ° ° ° to

. any intoxicated person * °°.” ~ So

Said § 131 provides for fine or imprisonment or both, upon: |

conviction. c= eae id

In-130 A.L.R. 357, it is stated:

“While it is true that ordinarily a vendor of intoxi-

cating Liquors is not, at common law, answerable’ to

a third person for injury or damage sustained by the

latter as a result of the intoxication of the purchaser

of the liquor, nevertheless it is established that in

some circumstances a vendor's sale of liquor may con-'

~~“ <titute a wilful violation of his duty to one other than

the consumer thereof and be the proximate cause of

the injury sustained by sucthird person, so that for

such injury the latter may have a right of action at-

common law. against the vendor.” '

It is apparent in the ease at, har that there are cireum-

stanees Which make the sales ef liquor to Sims and Owens

wilful violations of § 131. These circumstances were not ~

usual sales to adults or ordinary men. They were sales |

to intoxicated persons. They were not sales to ‘ta strong

and able-bodied man”, ax referred to in Manthet v. Hei-

- merdinger, 332 Il. App. 83, 892, To NLE. 2d 232, rehed on

by defendants. -

. Every person has a general duty to use due or ordinary.:

care not to injuré ethers, to avoid injury to others by any

agency set in operation by him. 65 C.J.S. 340.

One essential element in a tort is the existence of a duty

imposed by statute or otherwise in favor of the party

injured and on the party whose conduct produces the

injury. 86 C.J.S. 926. The duty, breach of which may

constitute negligence, may be a duty to the person injured

as an individual, but this is not essential, since it is syffi- .

cient that the duty was owed to him as a member of a

class or group. 65 C.J.S. 348. . . he

— ba —

‘The Illinois act making unlawful the sale of alcoholic

liquor to any intoxieated person is for the protection of

any. member of ‘the publie who might be injured or dam-

aged as a result of the drunkenness to which the partic.

ular sale of aleoholie liqtor contributes., Obviously th.

plaintiffs in the case at bar are entitled to the protection

given by § 131 of the Illinois Act.

It will be noted that, in availing themselves of that pro-

tection, plaintiffs are in no way relying upon those part-

of the JHinois aet imposing civil damage liability (whicl

Was unknown to the common law), resulting from lawfu!

sales of. intoxicating liquor to a competent -person, com.

monly known as dram shop act cases. -

The effect of § 131 of the Illinois act is that a sale.ot

“alcoholic liquor cannot lawfully be made to an intoxieate:

person. This is not ipeonsistent with the right of am

_ competent adult to buy alcoholic liquor and § 131 does not

prohibit a sale.to the latter.

In applying the common law to the situation presented

in’ this ease, we inust consider the law of tort liability,

even though the chain of events, ‘which started when the

defendant tavern keepers unlawfully sold iutoxieatin

liquor to ‘two drunken men, crossed state boundary line»

and culminated in the tragie collision in Michigan. We

hold ‘that; under the facts appearing in the complaint, the

‘tavern keepers are liable in tort for the damages and in

juries sustained by plaintiffs, as a proximate result cor:

the unlawful acts of ‘the former. The court-efred in it-

order dismissing the cause as to Chicago's Last Depart

‘Hunter, Admr. v. Derby Foods, Inc., 110 F.2d 970, 972.

133 A.L.R. 255, 258; Alabama Great Southern R. Co., Vv.

Carroll, 97 Ala. 126, 11 So. 803; Cameron v. Vandergriff. 53

Ark. 381, 13 S.W. 1092; El Paso and N.W. Ry. Co. v: Me-

Comas (1903 Tex. Civ. ‘App.), 72 S.W. 629; Conn. Valley

Lumber Co. v. Maine Central R.R., 78 N.H. 553, 103 A. 263:

130 S.W. i350, affirmed, 153.S.W. 1199.

“and Dark~ v. Scudders-Gale Grocer Co., 146 Mo. App. 246.

aS —fa—

nent Store, an Illinois corporation, Philip Saxner_and

‘Rubin Saxner, doing business as Phil's Tavern, and Wil-

‘liam Turbin, doing business as Matlan Liquors, rad to

‘that extent the ofder appealed from is reyersed and this

cause is remanded to the district court for further pro-

ceedings not inconsistent with the views herein expressed.

As to the defendants Harold Harris and Marie Movilli,

the order of the district court rs affirmed.

Ix Part, AFFIRMED AND,

Is Pant, Reversep anv -

Remaxvep Worn « Dineetions.

Kxocit, dissentin.. P find miysel® in agreement with my

fistinentished eollengues that noither the Michigan nor the

Hlinois Dram Shop Acts apply and that ‘the Michigan.com-

tion law governs. [Tam alse in agreement that under Ilhi-,

nois. law the IHinois' Dram Shep Act cannot be said to have

any extraterritorial coverage. “Eldridge v. Dén. Beach-*

comber, Ing., 342 I. App. 151. ea eee

The majority holds that the comnion law by virtue of

the oo gore (See. 1319 Ch. 43, 1951 Tlinois Revised.

pe < which makes sales of hquor to intoxieated per-.

-ons unlawful) gives a civil right of action in tort against

the sellers, With this conclusion I exinnot agree. | 2°

It should be noted that this is a penal statute’ providing

‘or the punishment of those sotline te intoxicated persons

and therebs ix of genera! comb to the paiblie. Ut confers

ho specific rights to private individuals. . Jy

“It was not a tert, at counnon law, to cither sell or

cive intoxicating liquor to ‘a strong and -able-hodied .

man,’ and it ean be said safely, that it ix not anywhere

- Jaid down in the beoks @hat’ such act was ever held,

- at common law, to be culpable negligence, that would

uimpose legal liability for damages upon the vendor or

donor of such liquor.” Cruse ¥. Aden, 127 TM. 251, O34

" (1889).° ° j [(

~

‘ — 8g — ee

’ :

L cannot accept the distinction made—that an intoxi-

cated person is not an ‘“‘able-bodied. man”—because that

. would; in effect, eliminate any reason for the enactment of .

the Dram Shop Act. .

The majority opinion ‘states that “Tf the «ommon ‘layé

does not cover the sjtuation before us, there is actually

no law applicable .:. nature abhors a vacuum. so does

the. law.”

.

Prior to. the enactment of the Dram Shop Act, tavern.

keepers and owners had no liability. By the same reason

ing, one ean say that a.'total and absolute vacuum pre-

vailed as to them. However, the common law has always

held accountable those résponsible for direct injury to

the person or property ‘of another. This is true: in the

instant ease. There is no bar to proceeding against the

driver and the owner of the ear jn question.

It may. be socially desirable -hold tavern keepers and |

owners responsible u der, , circumstances in this ease,

but that result, I beliave, should be achieved through Con-¢

gressional act, rather han by judicial interpretation.

*The trial court's order dismissing the complaint not,

only as ‘to the owners but also as to the tavern keepers

is correct and: should be affirmed.

en

4 |

1

ae ‘

; é. '. a; .

i} j

MN \

Pont a t

ms ee

‘ : a j

‘ oe ‘

per ae APPENDIX B.

—_ —- —-

mg a . /

Usiree States Courr Or Aprrrats *

>For The Seventh Circuit

Chicago 10, Illinois

July 20, 1959

Before’ ;

~ Henk: ine ‘J . Sehnackenberg, Cireuit: Judge

Hon, Win. G. Knoch,-Cireuit Judge :

lan. gerbes Castle, Cireuit) Judie

Many Axn Waynick, ¢t a )yAppeal from the

ea Plaintiff s-A ppc Hants, United States Dis-

ane v. ‘{ triet Court for the

Cuicguo’s Lasr DevartTMeENt iene f= Northern - District

an Illinois ‘corporation, et al., of Illinois, Kast-

IJe ” ndants-Appe llees. ern. Division.

This cause came on te be heard om the trance ript of the

record from the United States District Court for the North-

“ern District of Lilinois, Mastern Division, and wat argued |

hy counsel. > OAKS, Pi ae

On consideration whereot, itis ordered ea adjudgert

by this court that the judgment of the said) District. Court

in this cause appealed from be, and the same is hereby,

REVERSED ascto that part of: the judgment which dis-

missed the cause as to Clieace’s Last Departinent Store,

an Ilingis Corporation, Phy lips Saxner and Rubin Saxner,

doing business assPhil's Tavern, and William TPirbin, doing

‘Tusines! as Mathin Liquors, and to that extent this cause

is REMANDED to the District Court for further proceed-o

ings not inconsistent with the views expresséd in the

opiniow of this Court filed this day,:and the cost® herein

are taxed against the qtr tigg in this paragraph named,

It is further ordered and Xt judged by this court that, us

to the. Defendants. Harold Harris and Marie Movilli, the

_ judgment of the said District Court is AFFIRMED. .

at

mee | oe 108 —:

° - APPENDIX C.

Unirep States Corner Or APPEALS

For The Seventh Cireuit

Chicago. 10, Mlinois

- Septeygher 1, 1959

. Before | ' :

Hon. Elme® J J. Sehnac kenberg, Circuit Judge

fon. Win. G. Knoch, C ireuit Judge

Hon. Latham Castle, Circuit Judge

. Mary Ann Waynick, et al., ) Appeal from the

Plaintif{s-Appellants, | United States Dis.

a | trict Court for the

Cuicaco’s Last DerartMent Srore, P Northern District

an Illinois corporation, et al., of Illinois, Fast-

Defendants-Appcllees. }) ern Division.

——EE

' Sd

It is ordered by the Court that the petition for rehearing,

filed by the Appellee’s herein be, emer The same is here:

by. DENIED.

—iig—

_» APPENDIX D.

SuPREME Cécre Or Tne Usirep States

2:

SEA. scassnioninn . October Term, 159

—_———_—_—_—_——_

Pump SaxNer and Rrbin SAXNER,

Petitroners,

vs.

Mary ANN WAYSICK

ORDER EXTENDING TIME TO FILE PETITION FOR

= WRIT OF CERTIORARI

‘ . , ‘ :

UPON CONSIDERATION of the application of counse!

for petitioners,

IPAS ORDERED that the tine fortiting petition fer

writ of certiorari in the aboyve-entitled cause be, and the

game is hereby, extended to and including

~, January 14th, 160. | |

/s/-‘Tom C. Clark ; :

Associate Justice of the Supreme

f ~ > Court of the United States >,

— Dated this Ist ) -

day of December, 1959.

— 12a —

APPENDIX E.

Seetion 135 of the Illinois Liquor Control Act, Chiarpter

43, Hlinois Revised Statutes, 1955, provides:

6135. Actions for damages eaused by intoxication

Lessor’s liability—Korfeiture of lease—Maximum te-

cover ry——Limitations. Every person, who shalb be in-

Jjured in person or property by any intoxicated person,

shall have a-right of action in his’ or her own naine,

severally or jointly, against any person or persens who

shall hy selling or giving aleoholic liquor, have « exused

the intoxication, in whole or in part, of such person;

and any person owning, renting, leasing or permitting

the occupation of any building or premises, and having

knowledge that alcoholic liquors.are to be sold there-

in, or who having leased the same.for other purposes,

shall knowingly permit t! lerein the sale of any aleoholiv

liquors that have caused, in whole or in part, the in-

toxication Gf any person, shall be liable, severally and-

jointly, with the person or persons selling or givine

_ liquors aforesaid, as hereinafter provided; and a mar-

‘ried woman shall have the same right to bring sui:

and to control the same and the amount recovered as

a“feme sole; and atl damages recovered by a minor

under this Act shall be paid either to such minor, or

to his or her parent, guardian or next friend as the

court shall direct; and the unlawful sale, or giving

away, of aleoholic liquor shall work a forfeiture of ai!

rights of the lease or ten ant, under any lease or con-

tract of rent upon the premises where sueh unlaw!

sale or giving away shall take place; and all suits for

damages under this Act may be b¥ any appropriate

action in any of the courts of this State having com

petent jurisdiction. An action shall lie for injuries t»

means of support, caused by an intoxicated person, «

in consequence of the intoxication, habitual or aes

wise, of any person, —— as aforesaid. Such

- action shall be brought by-and in the name of the .

person injured or the personal representative, of the

deceased person, as the case may be, from whom said

support was furnished, and the amount recovered in

every such action shall be for the exclusive benefit of

the person or persons injured in loss of support, and

shall’ be distributed to such persons in the propor-

‘tions determined by the judgment or verdict ren-

dered in said action. Recovery under this Act for

injury’ to the person or to-the property of any person,

as aforesaid, shall not exceed $15,000.00 and recovery

under this Act for oss of means of support result-

ing from the death or injury of any person, as afore-

said, shall not exceed $15,000.00 for each: person so

injured where such injury occurred prior to the

effective date of this amendatory Act of 1955, and

not exceeding $20,000.00 Tor each person so injured

- after the effective date of this amendatory Act of

1955; provided that every action hereunder shall be-

barred unless commenced within one year next after

the cause of action accrued.’ As amended 1949, Aug.

10, Laws 1949, p. 861 S.1; 1955, July 14, Laws 1955, —

p. 1961, 8.1. Effective July 1, 1956.” -

“-

— }4a—.

APPENDIX F.

*

Section 22 of Act 338 of Publie Acts of Michigan. 1917,

as amended, Section 18.993 of Michigan Statutes -Anno-

tated, provides in part as follows:

*e

.. Every wife, husband, child, parent, guardian

“—~, or other persens who’ shall be injured fm person or

"property, means.of support or otherwise, by an intox:

cated person by reason of the unlawful selling, giving °

_ or furnishing to any- such persons any intoxicating

* liquor, shall have a right of action in his or her name

against the person who shall by such selling or-giving

of any such liquor have caused or contributed to the

intoxication of said person or persons or who shal!

have caused or contributed to any such injury, -and

the principal and sureties to any bond given under

‘this law shall -be liable, severally and jointly, wit!

the ‘person or persons ‘selling, giving or furnishing

any spirituous, intoxicating or ‘malt liquors as afors

said, and.in any action provided for in this section.

the plaintiff shall have the right to recover, actual

and exemplary damages in such sum not less than

$90.00 In each case as the court or jury may ‘deter

mine; Provided,. That no surety shall be liable 1

exeess of the amount of the bond required by this

act. In case of the death of either party, the action

or right of action or right .6f action given in “ee

section shall survive to or against his or her exeg

or administrator, and in every such action by a Sas

hand, wife, child or parent, the general re putation ot

the relation of husband and wife, parent and child

shall be prima facie evidence of such -relation, and

the amount so recovered by either husband or wil.

_parent or child, shall be his or-her sole and separat:

property.—Such damages together with thie:costs «!

suit shall le recovered in an action of: trespass 61

the case before any court of competent jurisdiction

and in any case where the parent shall be entitled +>

any such damages, either the father or mother may

sue alone therefor, but recovery by one ‘of such par-

ties shall be a bar to suit brought by the. other.”

4