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Casey v. Burns

OCTOBER 11, 1955.




Appeal from the Circuit Court of Peoria county; the Hon. HOWARD WHITE, Judge, presiding. Affirmed.


Rehearing denied November 10, 1955.

This is an appeal by the defendant, Donald Burns, from a judgment entered on a verdict of a jury in favor of the plaintiff in the sum of $1,500, in a suit for damages under the so-called Dramshop Act, (Ch. 43, Ill. Rev. Stats. 1953, par. 135 [Jones Ill. Stats. Ann. 68.042]). The plaintiff wife, Cynthia K. Casey, claimed injury to her means of support in consequence of the intoxication of her husband, Frederick Casey, allegedly caused by the sale of alcoholic liquors by the defendant to the plaintiff's husband, and that as a direct and proximate result of such intoxication the plaintiff's husband was allegedly struck about his head and body by one Virgil Osborn and James Collins, thereby causing serious injury and disability to her husband and injury to the plaintiff in her means of support.

The defendant moved for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence, and moved for judgment notwithstanding the verdict, which motions were denied, and the denial of those motions is the only error relied upon on this appeal. The defendant is not seeking a new trial. The principal grounds for reversal here urged are that the plaintiff failed to prove that Casey's injury and the plaintiff's loss of means of support were the proximate result of the intoxication, that the verdict cannot stand because it is not, in this respect, supported by competent proof, inasmuch as the only evidence tending to establish that the intoxication was the proximate cause of Casey's injury and the plaintiff's loss of means of support was incompetent and inadmissible, and that if such evidence was competent and admissible then the evidence shows that an intervening and unforeseeable agency, a wilful, wanton, and malicious act of someone else, and not the intoxication, was the proximate cause of the injury to Casey and to the plaintiff's means of support.

The plaintiff's husband, Casey, called as a witness for the plaintiff, testified that he entered the defendant's tavern, in Peoria, known as Don's Tap, about 1:15 to 1:30 o'clock p.m., June 29, 1952. Burns' stepfather was tending bar until 3:00 or 4:00 p.m. A bartender named Osborn came to work about 3:00 p.m. Casey purchased six to ten bottles of beer and had 6 to 8 drinks of whiskey, spending about $5 in all. These drinks he purchased from Burns' stepfather or Virgil Osborn, a bartender then employed by defendant. The last thing he can remember, before later waking up in a hospital, is ordering a drink and not having enough money to pay for it, and someone at another table saying: "I'll pay for your drink." The defendant Burns was not in the tavern when Casey was there.

The evidence further shows that Casey was found by the Peoria police (including Police Officer Crider) after a call to go to Don's Tap, at 9:21 o'clock p.m., June 29th. Casey was found by the police lying flat on his back along a fence in an areaway about 20 feet from the rear door of the defendant's tavern, unconscious, breathing hard, his head and face bloody, with many cuts and bruises about his eyes and left side of his head and face. The police noted the odor of alcohol on his breath. He was sent by ambulance to a hospital. The police then went to the police station, arrived there about 10:30 p.m., and while there Police Officer Crider and the defendant Burns had a conversation, to which we refer hereinafter, certain other police officers being present at the time.

Police Officer Crider was a witness for the plaintiff. The principal, if not only, evidence tending directly to prove the specific means by which Casey was injured was that of Officer Crider. He testified, over the objections of the defendant, that the defendant Burns, about 10:30 o'clock p.m., on June 29th, in the Peoria police station turned over a blackjack and a knife to the police; told Crider the knife was owned by Casey, the blackjack was one that was kept behind the bar at the tavern; that he (the defendant) was not there at the time; he got the blackjack from behind the bar; that he knew what had happened to Casey; told him (Crider) that his bartender (Osborn) had struck Casey with a blackjack that he had kept behind the bar; Crider further testified that the defendant Burns was at the station about 20 minutes, then returned to the tavern with the police, turned a blackjack over to them which he said he got from underneath the bar, and in handing over the blackjack the defendant said: "This is the one Osborn hit Casey with." Officer Crider further said the defendant Burns told him he knew what had happened to Casey by a customer that was in the place at the time and by one of the bruises involved in using the blackjack, but the Court sustained the defendant's objection to that question and answer so far as what the defendant knew that came from a customer, and struck that part of the witness' answer.

The defendant Burns, called by the plaintiff under Sec. 60 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060], was cross-examined by the plaintiff's counsel, and then also examined by counsel for the defendant, who brought out the testimony that Osborn had told him (the defendant) that Casey came in the tavern intoxicated, and because he was intoxicated he (Osborn) refused to serve him. The defendant Burns also testified, so far as material, that Osborn was his employee, and worked at the place the date in question until 9:00 o'clock p.m.; that Casey had been a casual patron, in and out of the place, during the year prior to June 29, 1952; that he came in two or three times a week; that when he was sober he was all right, but if he had too much he was rather obnoxious; that (over the defendant's objections) the defendant talked to Osborn the evening of June 29th after the defendant returned to the tavern at about 9:30 p.m.; the defendant "understood" when he came in that Casey had been taken to the hospital; Osborn mentioned that Casey had been in and he refused him a drink; the defendant went to the police station that evening, where he talked to some police officers, but made no "statement" regarding Casey; and Osborn is not now employed by the defendant.

It also appears, for whatever its significance may be, that Casey has a suit pending in the Circuit Court of Peoria County for assault and battery against Burns and Osborn, — Casey v. Burns, No. 41613, at law, — which is undetermined.

Donald Burns, the defendant, did not testify in chief as a witness for the defendant. Nor did Virgil Osborn, the defendant's bartender, testify as a witness for the defendant.

[1-3] There appears to be no question but that the plaintiff is the wife of Casey, that she was dependent on him, that Casey was intoxicated at the time and place in question, that the defendant by selling or giving him alcoholic liquor caused the intoxication, in whole or in part, that Casey was hurt and disabled, and the plaintiff has been injured in her means of support. The basic issue seems to be whether such injury was "in consequence of the intoxication," i.e., whether Casey's intoxication was the proximate cause of his being hurt and disabled and the plaintiff being so injured in her means of support: Whiteside v. O'Connors (1911), 162 Ill. App. 108; Hill v. Alexander (1944), 321 Ill. App. 406. Under the circumstances, the question presented by the appeal, therefore, is the rather narrow issue of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorable to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support "in consequence of the intoxication" of her husband Casey, as a proximate result of the intoxication. On this record we are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence. Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. (1950), 407 Ill. 121; the principles applicable on such a motion are the same as on a motion for a directed verdict, and are well settled: Neering v. Illinois Cent. R. Co. (1943), 383 Ill. 366; Blumb v. Getz (1937), 366 Ill. 273; Ciuferi v. Bullock Min. Co. (1947), 332 Ill. App. 1.

The defendant claims that the testimony of Officer Crider as to the occurrences and declarations related by Burns, purporting to be on the knowledge of Burns, was incompetent as admissions against interest because Burns' knowledge of what happened or what, if anything, Osborn did was apparently based upon what some tavern customer or Osborn had told him (Burns), and such occurrences and declarations related to matters not within the defendant's own personal knowledge and are hearsay.

The defendant cites no Illinois authority in support of his position in that respect, although he does refer to a few cases in other jurisdictions, — Pennsylvania, Alabama, North Carolina, New York, Tennessee, Utah, and Missouri, — to the effect, in substance, that an admission against interest by a party to a suit is not competent or admissible when based on something someone else has told the party and where the party has no personal knowledge of the subject matter.

[4-7] The general rule, and the greater weight of authority, however, is to the contrary. Ordinarily any admissions against interest of a party to the suit relative to the subject matter of the suit, tending to prove or disprove any material fact, are competent and admissible as original, substantive evidence against that party when inconsistent with the claim or defense he asserts in the suit. The law holds everyone responsible for what he says to the extent that his sayings may be used as evidence against him of the truth of what he has said. And, by the greater weight of authority, an admission by a party constitutes competent, admissible evidence notwithstanding the party may have had no personal knowledge of the subject matter, but the lack of knowledge affects the weight of such evidence: 20 Am. Jur. (Evidence) pp. 460-461; 31 C.J.S. (Evidence) pp. 1023-1025, 1027, 1091; ordinarily such admissions against interest by a party when made outside of Court are not conclusive on the party against whom they are offered and they may be explained, rebutted, or contradicted by other proper evidence: 31 C.J.S. (Evidence) p. 1164; ...

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