Kingston v. Turner

JUSTICE HARRISON delivered the opinion of the court: On July 19, 1982, a motorcycle driven by John C. Berry struck the left side of a pickup truck driven by plaintiff Jim Kingston. Berry was killed in the accident, and plaintiff was injured. Subsequently, plaintiff and his wife, individually and as parents and next friends of their children, filed a complaint directed partly against defendants, owners of two taverns where Berry consumed alcoholic beverages prior to the accident. The count of the complaint directed against defendants sought recovery pursuant to article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). A trial by jury resulted in a verdict for defendants, and the trial court entered judgment on the verdict. Plaintiffs appeal, raising several issues for our consideration. For the reasons which follow, we need only address plaintiffs’ contention that the court erred in failing to give a jury instruction tendered by plaintiffs. The evidence offered by plaintiffs tended to establish that Berry consumed beer, at both the New Moon Tavern and MD’s Tavern prior to the accident. David Scott testified that he was at both taverns with Berry, and that the beer consumed by Berry had “some effect” on Berry’s disposition and behavior. Debra Dugan indicated that she was driving west along Route 140 in Bethalto, on the date of the accident, when a motorcycle came onto the highway from MD’s Tavern, drove close to the rear of her car, and accelerated past her at a high rate of speed. The motorcycle continued along for a short distance and then struck the plaintiff’s truck, which was attempting to cross the four lanes of Route 140. According to Ms. Dugan, plaintiff had pulled out from a street on the right-hand side of the road, had crossed the first lane of traffic, and was positioned partly in the second lane of traffic and partly in a central lane provided for motorists wishing to turn left off of westbound Route 140 at the intersection where the accident occurred. Ms. Dugan, who was driving in the right-hand lane, testified that the motorcycle “had plenty of time *** to get back into my lane where he could have cleared the pickup truck,” but that the motorcycle did not make this maneuver. Plaintiff James Kingston testified that he looked in both directions before proceeding into the intersection, and that he did not see the motorcycle until it was about 20 feet away from him. A toxicologist testified that a sample of vitreous fluid taken from Berry’s eye after the accident revealed an ethanol concentration of .195, and, in the opinion of the toxicologist, this reading indicated that Berry was intoxicated at the time of his death. Defendants offered no evidence. During the jury instruction conference, plaintiff tendered the following non-Illinois Pattern Jury (IPI), Civil, instruction: “The sales and consumption of alcoholic beverages at two or more dramshops may result, that is, cause a single intoxication. When I use the phrase ‘caused the intoxication of John Clark Berry,’ I mean the liquor consumed at a given dramshop is a material and substantial factor in causing the intoxication. This is a question of fact for you to determine.” The court refused to give this instruction. Subsequently, during its deliberations, the jury sent the court a note which referred to part of one of the jury instructions, and asked the following question: “3.) That the liquor thus consumed caused the intoxication of John Clark Berry. Does this question mean that one or both establishments is totally responsible for Berry’s intoxication; or that one or both contributed to Berry’s intoxication?” In a discussion following receipt by the court of the note, plaintiff retendered the instruction quoted above, and the court again refused to give it. The jury resumed its deliberations without further instruction, and ultimately returned the following verdict and answers to special interrogatories: “Was John Clark Berry intoxicated at the time of the collision on July 19, 1982? Yes: X No: _ If yes, was such intoxication the result of consuming alcoholic beverages sold by (A) Kathleen Turner, d/b/a New Moon Tavern or (B) Donald W. Emde, d/b/a MD’s Tavern? (A) Yes: _ No: X (B) Yes: _ No: X * * * We, the Jury, find for all of the Defendants and against all of the Plaintiffs.” On appeal, plaintiffs assert that the court committed reversible error in not giving the requested instruction on the meaning of “cause.” We agree. Article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) provides, in pertinent part: “Every person who is injured in person or property by any intoxicated person, has a right of action ***, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. *** An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication ***.” In Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108, the court noted that, before this statute was amended in 1971, the reference in it to “causing the intoxication” included the phrase “in whole or in part.” (45 Ill. App. 3d 809, 811.) The Thompson court went on to discuss the meaning of this amendment: “The amendment basically establishes the requirement that there must be evidence that the charged dramshop has not merely furnished a negligible amount of intoxicating liquor but has in fact caused the intoxication. [Citation.] It does not follow, however, that the legislature intended to limit recovery to a single defendant who causes the intoxication. The statute recognizes this by giving the right of action ‘severally or jointly’ against any person who causes the intoxication. (Ill. Rev. Stat. 1973, ch. 43, par. 135; see Comment, The Illinois Dramshop Act: Effect of the 1971 Amendment, 1974 U. Ill. L.E 466, 472-73.) Moreover, the ordinary meaning of the word ‘causes’ as used in the statute does not exclude the possibility that two or more causes may join to result in a single intoxication. If the legislature had intended that liability be limited to the one dramshop which is most responsible for causing the intoxication, it would most likely have retained the alternative that intoxication may be caused ‘in whole’ rather than deleting it with the ‘in part’ alternative. Further [,] there is a general recognition in the law that causation giving rise to liability may be the result of two or more independent acts. [Citations.]” 45 Ill. App. 3d 809, 811-12. When a jury raises an explicit question on a point of law relevant to the deliberation of the factual issues before it, it is the duty of the trial judge to attempt to clarify the question in the minds of the jury members. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 407, 375 N.E.2d 456.) Moreover, when the meaning of a word used in a statute has been judicially construed, an instruction reflecting this construction may appropriately be given. (Cf. Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 90-91, 369 N.E.2d 155 (no error in refusing to give instruction regarding statute pertaining to railroad crossings, as instruction did not reflect judicial interpretation of words “safe” and “approaches” contained within statute).) Here, the word “causes,” as used in the Liquor Control Act, was specifically construed in Thompson v. Tranberg to mean “whether the defendant’s conduct was a material and substantial factor in producing or contributing to produce the intoxication.” (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812.) The instruction tendered by plaintiff accurately incorporated this definition, and would have correctly answered the question posed by the jury. We therefore hold that the court erred in not giving the requested instruction. Having concluded that the failure to give this instruction was error, we must also determine whether that error was of sufficient magnitude to warrant reversal. Upon careful consideration of the complete record, we are unable to say that the court’s failure to give the instruction was harmless error. Unrebutted evidence established that Berry was intoxicated at the time of the accident, and that his mood was affected by the alcohol consumed at defendants’ establishments. There is no evidence suggesting that Berry consumed liquor anywhere else, and Debra Dugan testified that Berry had more than ample time to turn back into the right-hand lane and avoid the accident. While defendants assert that plaintiff’s conduct in driving across the road was the proximate cause of the accident, the intoxication resulting from the sale need not be the sole cause of the injuries (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 920, 444 N.E.2d 504), or even the principal cause (see Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108). In light of the substantial, uncontradicted evidence tending to show that Berry was intoxicated, that he consumed liquor at defendants’ taverns, and that the intoxication at least partially caused the accident, we are compelled to conclude that the trial court’s failure to instruct the jury as to the legal meaning of the word “cause” constitutes reversible error under the facts of this case. For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and this cause is remanded for a new trial. Reversed and remanded. WELCH, J., concurs.