Schulte v. Menke

Mr. Presiding Justice Brown delivered the opinion of the court. The defendants filed general and special demurrers to the plaintiff’s declaration consisting of two counts. The court sustained the demurrer and dismissed the suit and gave judgment for costs against the plaintiff, who brings the case to this court by appeal. The first count of the declaration alleges that appellees, on the 9th day of March, 1902, in the village of Brussels, at the County of Calhoun, State of Illinois, sold intoxicating liquors to one John Pohlman and one Frank Brock, and in consequence thereof, the said Pohlman and Brock became and were intoxicated upon the said liquors so sold to them, and while so drunk and intdxicated, the said Pohlman made an assault upon the person of the said Frank Brock with a buggy hub and spoke attached thereto, inflicting upon the latter divers injuries, both internal and external; and the appellant then and •there took charge of the said Frank Brock while he was so intoxicated upon the liquors so sold to him by appellees, and cared for and provided for him, the said Frank Brock, and while he was in a helpless, delirious and unconscious state, and kept and cared for him, the said Frank Brock, for the space of two hundred and thirty-one days, for which an action has accrued to him, appellant, to have and recover for his said services, in taking care of the said Brock while thus intoxicated as aforesaid, and as compensation therefor, from the said appellees, the sum of $1,538; and also, the further sum of $2 per day for each day the said Frank Brock was so kept by the appellant, as aforesaid, amounting to the further sum of $462. The, second count of the declaration alleges in substance, substantially the same matters alleged in the first count thereof, except in the first count the said John Pohlman and Frank Brock were both intoxicated upon the liquors sold to them byappellees, and in the second count the declaration alleges that intoxicating liquors were sold only to the said Frank Brock, by means of which he then and there became intoxicated, rendering him helpless, delirious and unconscious. The cause of action sought to be stated by the declaration is based upon the following provision of the Dram-Shop Act: “ Every person who shall, by the sale of intoxicating liquors, with or without a license, cause the intoxication of any other person, shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and $2 per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, which sums may be recovered in an action of debt before any court having competent jurisdiction.” Hurd’s Be vised Statutes, chap. 43, sec. 8. The defendants, who were saloon-keepers, were responsible only for the natural and probable results of the sale of intoxicants to Brock and Pohlman. They were not legally liable for consequences which could not have been foreseen or reasonably expected to occur as a direct or natural result of the use as a beverage of the intoxicating liquors sold by them to Brock and Pohlman. Parsons on Contracts (8th Ed.), Yol. 3, star page 180; City of Peoria v. Adams, 72 Ill. App. 672; Shugart v. Egan, 83 Ill. 56; Schmidt v. Mitchell, 84 Ill. 195; Lueken v. People, 3 Ill. App. 375; Cooley on Torts (note one), page 74; Fairbanks v. Kerr, 70 Pa. State, 86; Krach v. Heillan, 53 Ind. 526. The law did not require appellee to presume that Brock would be assaulted or brutally beaten and injured by Pohlman. Shugart v. Egan, 83 Ill. 56; Schmidt v. Mitchell, 84 Ill. 201; Gintz v. Bradley, 53 Ill. App. 597. It is not a natural and probable result of intoxication that the person intoxicated should come to his death or receive great bodily harm bv the willful criminal act of a third party. On the contrary, it is the common experience of mankind that the condition' of one intoxicated invites protection against violence, rather than attack. Shugart v. Egan, 83 Ill. 56; Schmidt v. Mitchell, 84 Ill. 195; Gintz v. Bradley, 53 Ill. App. 597; Hays v. Waite, 36 Ill. App. 401. The Dram-Shop Act is a statute penal in character and provides a right unknown to the common law, and according to well understood canons, should receive a strict construction. And to recover, appellant must bring himself clearly within its terms. Brannon v. Adams, 76 Ill. 337; Cruse v. Aden, 127 Ill. 239; Albrecht v. The People, 78 Ill. 510; Meidel v. Anthis, 71 Ill. 241; Freese v. Tripp, 70 Ill. 496. Section eight of the Dram-Shop Act now under consideration, does not make a saloon-keeper liable for the care and keep of a person who has been injured by an intoxicated person to whom the saloon-keeper sold liquor, and whose intoxication the saloon-keeper caused; nor does said section make a saloon-keeper liable for the care and keep of one who is injured, not in consequence of the intoxication, but in consequence of the willful criminal act of a third party, even though the party injured was at the time he received such injury, intoxicated. But under said section eight the saloon-keeper who sells intoxicating liquors to a person and causes his intoxication is liable for the care and keep of such intoxicated person in the following cases only: He is liable in the first place, to pay a reasonable sum for taking care of the person while he is intoxicated and unable to care for himself; and then, if his drunkenness caused him to become sick, or if while drunk, and in consequence of the intoxication, he injures himself so as to require others to take care of him on account of his inability to care for himself, then the saloon-keeper is liable to pay a penalty of two dollars a day to the person who takes care of him. In construing this section of the statute the Supreme Court in Brannon v. Adams, 76 Ill. 335, said : , “ The language of the statute contemplates two conditions in which the person cared for may be. The first is manifestly to take charge of and provide for him while drunk. Then what is the other condition ? It would seem to be for necessarily keeping him in consequence of such drunkenness. If sickness ensues from and as a consequence of such drunkenness, or if while drunk, he should injure himself, or become disabled, as a consequence of his drunkenness, and it thereby becomes necessary that care should be bestowed upon him, then the person doing so would be entitled to $2 a day during, and only during, the time that such care should be necessary.” The intervention of the independent act of Pohlman in this case between the ívrong complained of and the injury sustained, was the direct or immediate cause of Brock’s injury. The sale of the liquor was not the proximate cause of his injury, and therefore appellees are not liable. Wharton on Negligence, sec. 134; Am. & Eng. Ency. of Law, Yol. 21, page 493; City of Peoria v. Adams, 72 Ill. App. 663; Scheffer v. Railroad Co., 105 U. S. 249; Bradford v. Boley, 167 Pa. State, 512; Shugart v. Egan, 83 Ill. 56; Schmidt v. Mitchell, 84 Ill. 195. The demurrer was properly sustained and the judgment of the Circuit Court will be affirmed. Affirmed.