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Hudson v. Leverenz

FEBRUARY 14, 1956.

MILDRED HUDSON, SHARON KAY HUDSON, BY MILDRED HUDSON, HER MOTHER AND NEXT FRIEND, DAVID LEE HUDSON, BY MILDRED HUDSON, HIS MOTHER AND NEXT FRIEND, AND MICHAEL EDWARD HUDSON, BY MILDRED HUDSON, HIS MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLEES,

v.

DON LEVERENZ, D/B/A DON'S TAVERN, STANLEY R. SMITH, D/B/A SMITTY'S TAVERN, FRANK DAVISON, D/B/A DAVISON'S TAVERN, RITA PINDER, MARY CONNOR, AND HAROLD CONNOR, D/B/A TOP HAT, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Vermilion county; the Hon. JOHN F. SPIVEY, Judge, presiding. Reversed and remanded.

JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 12, 1956.

This is an appeal growing out of what is commonly known as a "Dram Shop Case." Suit was brought by Mildred Hudson and her three minor children, Sharon Kay Hudson, David Lee Hudson and Michael Edward Hudson, against Don Leverenz, Mary A. Connor, Stanley R. Smith and Frank Davison, tavern operators, under the Dram Shop statute, for damages growing out of the death of Clinton Lee Hudson, husband of Mildred Hudson and father of the minor children. Clinton Lee Hudson was killed in an automobile accident when the automobile in which he was riding, collided with one driven by one Jackie Nebergall, who was alleged to have been intoxicated. Nebergall was alleged to have bought intoxicating liquors from the tavern operators, the defendants herein.

Trial was had before the Circuit Court of Vermilion County, without a jury, and after hearing the evidence the court entered judgment for the plaintiff Mildred Hudson, in the amount of $15,000; for the plaintiff Sharon Kay Hudson, in the amount of $6,750; for the plaintiff David Lee Hudson, $8,250; for the plaintiff Michael Edward Hudson, $8,750, the judgments being joint and several against the defendants Don Leverenz, Mary A. Connor, Stanley R. Smith and Frank Davison. From these judgments the defendants appeal to this court.

For grounds of the appeal the defendants contend that the plaintiffs failed to prove their case by a preponderance of the evidence; that the plaintiffs failed to prove their case by circumstantial evidence; that the trial court erred in denying defendants' motion for leave to file a jury demand; that the trial court erred in excluding evidence of social security payments to the plaintiffs; that the damages should be limited to an aggregate of $15,000 and that the Dram Shop Act as presently written is unconstitutional.

Since the first two grounds assigned as error deal with questions of fact, these grounds will be discussed together. This court has held repeatedly that unless the verdict of a jury or court is palpably and clearly erroneous, it will not be disturbed by a reviewing court. This doctrine is so well established that it is not necessary to cite authorities. It makes little difference whether the trial was before a court or a jury. The trial court or the jury has the opportunity to hear the witnesses, observe their demeanor while testifying, their candor or lack of candor, their means of knowing that about which they testify, and in general to weigh the evidence as well as the actions of the witnesses. The reviewing court does not have this opportunity, and for that reason hesitates to disturb a finding of fact unless it is clearly and palpably erroneous. Here the evidence is conflicting. There are a number of witnesses who testified that the said Nebergall had drunk intoxicating liquors, bought or obtained from the defendants a short time before the fatal accident. Nebergall and his companion testified to these facts. It is true that there was some impeachment of their testimony, by way of prior statements made about Nebergall's drinking. It was for the trial court to decide, whether or not at the time of the trial, Nebergall and his companion Ronald Thomas told the truth, or whether or not the prior statements were true. There was testimony that Nebergall was not intoxicated. The three men of the highway maintenance crew were witnesses for the defendants. Two of them were close to Nebergall and they testified that they did not smell alcohol on his breath and that he, Nebergall, appeared dazed. The two nurses at the hospital testified that they administered to him and they did not notice any odor of intoxicating liquor and in their opinion he was not intoxicated. All this testimony presents questions of fact which is the province of the trial court or jury to pass upon and this court is unable to find such error as would justify this court in reversing the finding of the trial court on such questions of fact.

The third point presented by the defendants' appeal is that the trial court erred in denying their motion for leave to file a jury demand. The plaintiffs did not file a jury demand and none of the defendants filed a jury demand at the time of filing their answers. The third amended complaint was filed September 2, 1954. On October 4, 1954, the case was set for trial before the court for December 13, 1954. On December 1, 1954, the defendants filed their demand for a jury trial. On December 6, 1954, the defendants filed motions for leave to file a jury demand, supported by affidavits of counsel. These affidavits set up that as a result of mistake, inadvertence or misapprehension of the facts, said attorneys failed to file a jury demand. To these motions, the plaintiffs filed their motion to strike. On December 6, 1954, a hearing on said motions was had and the court denied the defendants' motion for leave to file jury demands. Five days later, on December 11, 1954, one of the attorneys for the plaintiffs filed a counter affidavit, in which this attorney set up that the case was set for trial before the court, on October 4, 1954 and that Ralph Swanson, one of the attorneys for Leverenz, one of the defendants, was present; that depositions were subsequently taken; that all attorneys of record had notice 30 days prior to the filing of the defendants' motions for leave to file jury demands; that the case was set on a non-jury calendar and that certain attorneys for some of the defendants knew this from the time of the filing of the complaint; that it would be disadvantageous to the plaintiffs to grant defendants a trial by jury. Whether or not there was any agreement about the filing of the counter affidavit for the plaintiffs, does not appear of record, but apparently the trial court did not consider it in his ruling.

Section 64 Civil Practice Act (Section 188, Chapter 110, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 104.064]) provides that a plaintiff shall file his demand for jury in writing at the time suit is commenced and that a defendant desirous of a jury trial shall make such demand and file the same at the time of filing his appearance; otherwise, such party shall be deemed to have waived a jury.

Section 59, Civil Practice Act (Section 183, Chapter 110, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 104.059]) provides that additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action.

Supreme Court Rule 8, Paragraph 5 (Section 259.8, Chapter 110, Illinois Revised Statutes, 1953 [Jones Ill. Stats. Ann. 105.08, subd. (5)]) provides that the judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of time.

The right of the legislature to regulate trial by jury has been settled for a long time. In the case of Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431, the power of the legislature to regulate trials by jury was upheld. That case further held that a litigant must do some affirmative act toward the end, in order to be entitled to a jury trial. In that case, in defining the right of a litigant to have a jury trial the court said: "In view, however, of the provision of the constitution that the cherished right of trial by jury shall remain inviolate, the statute should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce that right." The case of Stephens v. Kasten, 383 Ill. 127, affirms the doctrine of the Morrison Hotel case, supra, and says: "Courts jealously guard the right of a person to a trial by jury. Section 59 of the Civil Practice Act attempts to protect the rights of individuals for good cause shown in allowing additional time in the discretion of the court for the doing of any act or taking of any step or proceeding prior to judgment in any civil action.

"Paragraph 5 of Supreme Court Rule 8 furthers this protection by providing that the court may, on motion, extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time. It is true that this section and the rule of court thereunder cannot authorize an extension of limitation periods fixed by a statute nor extensions of time to do acts beyond the period over which a court has jurisdiction. However, in order to read purpose into the statute, and the rule of court thereunder, such provisions must be construed to apply to situations in which, for good cause shown and in fairness and justice, time should be extended in which to allow a party to exercise the right of trial by jury as guaranteed to him by the constitution."

The Stephens v. Kasten case, supra, had a similar situation to the present case in that there was a change of attorneys. The court, in ruling that a jury trial should have been allowed, said: "With the presentation of these facts to the trial court, the court, in the exercise of discretion and in the protection of the jealously guarded right of trial by jury, should have allowed to the appellants below the right to file a demand for jury, especially since it appears from the record that the filing of such jury demand at the later date did not tend to inconvenience the court or parties litigant, or prejudice any rights in any manner whatsoever. To arbitrarily refuse to accord to parties litigant the right to file a jury demand after time therefor has expired, upon good cause shown, is an abuse of the discretion of the court."

This court in the case of Roszell v. Gniadek, 348 Ill. App. 341 said: "Considering Stephens v. Kasten, supra, as raising the identical point involved ...


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