No Transcript of Record — Lowrey v. Malkowski (No. 771)

INDEX.

5 =

| .*. PAGE |

Opinions Below 2

a urisdiction 2

* Questions to Be Reviewed 3

Constitutional Amendment, Rule of Supreme Court mn oe

Statement of the Case “4

Reasons for Granting the Wnit 6

Conclusion : 13

| Appendices A & B—Opinions of Appellate & Supreme

Courts of Illinois, both containing pertinent excerpts

of acim 135 of Illinois Dram — Act - ecsledianed . 15.2,

o

Fifth Amendment U.S. Constitution

and Illinois Statutes

Fifth Amendment, U.S S. Constitution saci .. 2, 7, 8 9, 12

Illinois Dram Shop, Chap. 43, Revised Statutes, See. . .

BUOY -Gnieitsiacossincibseheniisaiiapstacenipsia susie’ 3, 16, 18, 22, 23

Illinois Dram Shop, Chap. 43, Revised Statutes, Sec.

131 .. : — & ii

Minois Limitations Act, Chap. 83, See. 15 ....: 23

Iltinois Limitations Act, Chap. 83, See. ASE ae 9

Federal Decisions

Rogers v. Dwight, 145 F. Supp. 537 . 6, 10, 24

Seal v. American Legion, 245 F. 2d 908 9, 24

Waynick, et al. v. Chicago’s Last Department Store,

et al., 269 F. 2d 322, July, F959 ; 10, 11

‘

oe Illinois Decisions. <= .

Andersen v. Anderson, 320 Til. App.75, 49 N.E. 94 841 11

Cope v. Gepford, 326 Til. App. 171, 61 N.E. 2d 394 ......-- 12

‘Danhof v. Osborne, 10 Ill. App. 2d 529, 135 N.E. 2d 492 6

Deasey v. City of Chicago, 412 TH. 151, 156-7 -......... 19, 25

Desiron v. Peloza, 308 Ill. App. 582, 32. N.E. 2d 316 -..... 8

Fitzpatrick v. Piteairn, 371 Ill, 203 ........-.--.-------- RAND 23

Hartray v. Chicago Railways Co., 290 II. 85 .....«...... 23, 29

Huckaba v. Cox, 14 Hl. 2d 126, 130 ........-------------------- 16.

Joyce v. Blankenship, 399 eT SR 19, 25

Jury v. Ogden, 56 Ill. App. 100, BD cicasennin Bcencessencnninesncons 16

Killham v. Caloupka, 195 Ill. App. 182 -...----------+-----+0--- 6

Lloyd v. Kelly, 48 Ill. App. 554 -...-.--------p------+- i =

‘Lowrey, et al. v. Malkowski. et’al., 23 Ill. App. 2d 371,

163 N.E. 2d 528 ......------------+ nccenececena aati ae a

Lowrey, et-al- v. Malkowski, et al., 20 Ill. 2d 280, 170 “

NB 2d 147 onneaceenestceenneeneteeceneensenneensensenssenstnnsnncenanensenses 2, 21

McClure v. Lence, 345 Ill. App. 198 -.......----------5--+eeeeeere+ 18

Orlicki v. MeCarthy, 4 Ill. 2d 342, 353 -.........--.---- 23, 24, 25

Pearson v. Renfro, 320 IIl.. App. 202 ........---------------ee0-+ 18 ..

Robertson v. White, 11 Ill. App. 2d 177 .........--------0----- 18

St. Clair v. Douvas, et al., 21 Il. App. 2d NE canteen 15

Shelton v. Woolsey, 20 Ill. App. 2d 401, 405 ...........-..----- 23

Steiskal v. Straus, 3 Ill. App. 2d 479 —-.2..2-------------- 23

_ Stellers + Miles, 17 TH. App. 2d 485 2 1

‘Thomas v. Carroll Const: Co., 14 Ill. App. 2d 200 .......... 18

Thompson v. Capasso, 21 Ill. App. 2d 1 ........-.---------------- 18

In Re: Tilliski’s Estate, 323 Ill. App. 490 -.............--....-- 11

Wilson v. Tromly, 404 Hl. 307 ........--..----. EEE Sota aa 23°

- Texts

19 II. Digest’ (Burdette-Smith) 335... 6, 9

43 Corpus Juris Secundum 271, See. 100 .....-....--------- ~

48 Corpus Juris Seeundum 129-0... 9, 12

54 Corpus Juris Secundum 127 ........... ietieeandantinevepsiion:: ae

65 Corpus Juris Seeundum 340, See. 4 -......-:.--- 10, 11

86 Corpus Juris Secundum $26, See. 6 ........----.----------- 10

Supreme Court of t

Octoser TERM, AD. 1961

,

BEATRICE LOWREY, etal, 9»

; Petitioners,

V8.

é

EDWARD and THEODORE MALKOWSKI, et al,

‘ Respondents.

Petition For Writ Of Certiorari To The

Supreme Court Of linois.

To the Honorable Chief Justice and The Associate Justices

‘of the Supreme Cou@™ of the United States:

Petitioners Beatrice Lowrey, et al, pray that a writ of

certiorari issue to review a decision of the Supreme Court

of Illinois, which affirmed a decision of ‘the Appellate court ,

of Illinois, First District, which had affirmed in part and

reversed in part a decision of the Circuit Court’ of Cook

County, Hlinois.

—2—

&

————ae

OPINIONS BELOW AND JURISDICTION.

’

‘

The decision of the Supreme Court of Illinois was ren-

‘dered Sept. 29, 1960, becoming final November °30, 1960,

when petition for rehearing was. denied, reported in 20 Il.

2d 280, 170 N.E. 24-147, Appellate: decision became final

Decernher 25,.1959, reported in 23 Ill. App. 24 371, 163°N.E.

‘0d 528, Jurisdiction is invoked pursuant to Title 28, see 2101

(© and rule 19, Supreme, ¢ ‘ourt.. Petitioners submit there

are violations of the due process clause of the 5th A» .end-

. ment, in that minors as well as the adult-plaintiff, have been

- deprived of property rights, i.e., the right to sue, or, being ©

deprived of property without due ‘process. Phree different

federal courts have passed on dram shop actions, both

-gommon-law and statutory, as will be shown below, all dif-

ferently, and, therefore this court ought to settle same as.

can be, particularly those questions of basic human rights

involving due process. Also, these opinions of the Appellate.

and Supreme Courts differ, and; neither ruled on the ques-

: tion of individual rights to maximum recovery, instead of

group-plaintiffs maximum recovery, under the Dram Shop

- Act.

a

> ° .

_ QUESTIONS TO BE REVIEWED.

~

-

(a) Whether a. state limitation of 1-year right of ac-

tion appliés to a ‘minor, who is prevented from suing after

.the 1-year although still, a minor, sees him of pro-

’. tection of due process. —

‘(b) Whether a state holding that it is necessary that

support and maintenance had in fact been provided by the

support- -provider before ar action for such loss of support

can stand; or whether it results in deprivation of property-

rights without due process, and against public policy, when

such right of action is denied, because the legal provider of .

support fails and refuses to so do.

9

(c) Whether’ the holding in the Waynick case gives

rights of action in the cases here, notwithstanding these

Appellate and Supreme court decisions.

_ (d) Whether this court has the Tight to rule on the

’ problem of individual rights to maximum recovery under

the Illinois Dram Shop Act, instead of being restricted to

. one maximum group-recovery, on the ground of depriva-

tion of due process under the 5th Amendment, even though

neither the Appellate nor Supreme courts ruled thereon.

Mlinois Dram Shop Statute. ‘.

It is:( thapter 43, Ill. Revised Statutes. See. 135 wesn to

injuries, death, loss of support, 1-yr. limitation period,

amount of reéovery, ete., they being -more fully set out in

the above court opinions, on pages 18, 22 of this petition.

See. 131 prohibits the sale of intoxicating liquor to any in-

toxicated person. :

2 =

STATEMENT OF THE CASE.

ey ee

These are dram shop suits, for failure to support, brought

by: Beatrice: Lowrey, for herself and two minor children

against the defendant dram shops. Complaint was filed

in the Circuit. Court of Cook County, Illinois, April 3, 1958,

lleging she obtained a divorce from-her then husband on

bie grounds ‘of habitual drunkenness for at least two years

preceding the filing of the divorce action. The decree of di-

vorce was entered November 10, ‘1954. Thereafter on April

23, 1957, she obtained a judgment in sum of $1590.00, for

accrued child support and fees, with alimony being reserved

in the divorce decree. At no time has the said husband paid __

any support for the children, nor alimony for Beatrice,

nor any costs or fees. She married Roger Lowrey on Jan-

uary 8, 1955, and after date of the money judgment-he

adopted the two minor children. The dram shop suit al-

leged further that during the former marriage, the then

husband was gainfully employed at times, and except for.

his excessive drinking would have been fully capable of

properly supporting plaintiff-former- wife and the children.

It charged, further, that the said husband purchased or ob-

tained by gift intoxicating liquors from the de fendants,

jointly and severally, resulting in his habitual drunken-

ness throughout such periods, all with fault on part. of

. defendants. | ie: |

No testimony was ever taken, all judgments were had on

pleadings or briefs in- courts of review. The Appellate

-Court held that the ‘‘action-does not have to be for phys-

ical injuries to the provider ofthe support’’, but affirmed

on the ground that the suit was filed-after 1 year after the

cause of action accrued, thus failing to comply. with. the

e*

wait

limitation period in the — Act, applying to the minors

as well as-to the adult: plaintiff. That court held further.

that ‘‘means of support”’ means that the provider. of the

_ support did,in fact so provide, and where as here no sup-

port had been at any time provided, the act was not com-

- plied with and there was no cause of action.

- The Supreme Court affirmed as to the 1-year timhitation,

: including the minors, indicating in its opinion that fhe

causes of action accrued as far back’as 1954, when the di-

vorce on the grounds of habitual drunkenness was granted,

‘and that such 1-year period of limitation commenced at

least on that‘date. The opinion stated that as a matter of

‘‘public policy” a dram shop operator ought not to be held

‘*perpetually’’ liable for the consequences of the sale of

liquor, No reference was made to the “means of support”

requirement’ of the Appellate court’s opinion. Neither opin-

ion rujed as to each individual being entitled to sue for

the maximum, alone, distinguished from group-aetion.