SCHNACKENBERG, Circuit Judge.
In a diversity action, filed in the district court at Chicago, Illinois, by citizens and residents of the state of Michigan against citizens and residents of the state of Illinois, plaintiffs Mary Ann Waynick, Wilma Ann Scruggs, and Carl Mack Waynick, Linda Kay Waynick, Nellie Sue Waynick and Alice Faye Waynick, minors, by Mary Ann Waynick, 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 driver by William Gerald Scruggs, who was killed in the collision. Plaintiffs' complaint named as defendants Chicago's Last Department Store, an Illinois corporation, Philip Saxner and Rubin Saxner, doing business as Phil's Tavern, and William Turbin, doing business as Matlan Liquors, who were engaged in the business of selling and furnishing intoxicating liquors in the state of Illinois.
The Saxners moved to dismiss the cause, for failure of the complaint to state a claim, while Chicago's Last Department Store and Turbin moved for judgment on the pleadings, on several grounds, including the following:
From the court's order sustaining defendants' motions, plaintiffs have appealed. They rely for relief, in the alternative, on (1) §§ 22 and 29 of the Michigan Liquor Control Act,
It is our view that plaintiffs' reliance on either the Michigan act or the Illinois act rests upon such dubious grounds 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 law supports plaintiffs' cause of action. Before considering that question, we feel it proper to point out that the Illinois Dram Shop Act has been held not to apply extraterritorially to a situation where the sale of intoxicating liquor takes place in Illinois and the injury resulting therefrom occurs in another state. Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 154, 95 N.E.2d 512, 22 A.L.R.2d 1123, leave to appeal denied, 346 Ill.App. xiv. It appears to us that it is also probable that the Michigan Liquor Control Act is not applicable where a sale of intoxicating liquor in Illinois produces injuries in Michigan. Defendants so 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 leave a vacuum in the law insofar as unlawful sales of intoxicating liquor in one state produce injuries to third persons in another state. Certainly the position of defendants in this court is that the liquor control acts of Illinois and Michigan do not cover such a case. It seems to us, therefore, that their contention that the Illinois Dram Shop Act has "preempted the field", is unsound. 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;
In Stout v. Keyes, 2 Doug. Mich., 184, 43 Am.Dec. 465, at 467, it was held that the common law applies in Michigan and that
The injury having occurred 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, § 131, ch. 43, R.S.Ill.1957, which provides:
Said § 131 provides for fine or imprisonment or both, upon conviction.
In 130 A.L.R. 357, it is stated:
It is apparent in the case at bar that there are circumstances which make the sales of 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 "a strong and able bodied man", as referred to in Manthei v. Heimerdinger, 332 Ill.App. 335, 352, 75 N.E.2d 132, 140, relied on by defendants.
Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him. 65 C.J.S. Negligence § 4, p. 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. Torts § 6, p. 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 sufficient that the duty was owed to him as a member of a class or group. 65 C.J.S. Negligence § 4, p. 348.
The Illinois act making unlawful the sale of alcoholic liquor to any intoxicated person is for the protection of any member of the public who might be injured or damaged as a result of the drunkenness to which the particular sale of alcoholic liquor contributes. Obviously the plaintiffs in the case at bar are entitled
It will be noted that, in availing themselves of that protection, plaintiffs are in no way relying upon those parts of the Illinois act imposing civil damage liability (which was unknown to the common law), resulting from lawful sales of intoxicating liquor to a competent person, commonly known as dram shop act cases.
The effect of § 131 of the Illinois act is that a sale of alcoholic liquor cannot lawfully be made to an intoxicated person. This is not inconsistent with the right of any 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 case, we must consider the law of tort liability, even though the chain of events, which started when the defendant tavern keepers unlawfully sold intoxicating liquor to two drunken men, crossed state boundary lines
In part, affirmed and, in part, reversed and remanded with directions
KNOCH, Circuit Judge (dissenting).
I find myself in agreement with my distinguished colleagues that neither the Michigan nor the Illinois Dram Shop Acts apply and that the Michigan common law governs. I am also in agreement that under Illinois law the Illinois Dram Shop Act cannot be said to have any extraterritorial coverage. Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512, 22 A.L.R.2d 1123.
The majority holds that the common law by virtue of the penal statute (Sec. 131, Ch. 43, 1951 Illinois Revised Statutes, which makes sales of liquor to intoxicated persons unlawful) gives a civil right of action in tort against the sellers. With this conclusion I cannot agree.
It should be noted that this is a penal statute providing for the punishment of those selling to intoxicated persons and thereby is of general good to the public. It confers no specific rights to private individuals.
I cannot accept the distinction made — that an intoxicated 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 "If the common law does not cover the situation before us, there is actually no law applicable * * * nature abhors a vacuum; so does the law."
It may be socially desirable to hold tavern keepers and owners responsible under the circumstances in this case, but that result, I believe, should be achieved through Congressional act, rather than 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.