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Danhof v. Osborne

JUNE 7, 1956.

MAY DANHOF, PLAINTIFF-APPELLEE,

v.

HARRIET E. OSBORNE, D/B/A DUFFY'S TAVERN, CO-DEFENDANT-APPELLANT, HENRY A. BUTTELL D/B/A HANK'S TAVERN, CO-DEFENDANT-APPELLANT.



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

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 16, 1956.

This is a suit under the Dram Shop Act, ch. 43, Ill. Rev. Stats. 1953, par. 135, for loss of means of support by May Danhof, wife of Cornelius P. Danhof, sometimes known as "Pelie" Danhof, against the defendants as owners and proprietors of two taverns in which she alleges her husband was sold or given alcoholic liquor and thereby became intoxicated. The action is for alleged injury in her means of support resulting "in consequence of the intoxication" of her husband. The jury returned a verdict for the plaintiff of $10,000. Judgment was entered thereon. The defendants appeal, after denial by the trial court of their motions for judgment notwithstanding the verdict, and for a new trial. During the course of the trial motions by the defendants for directed verdicts at the close of the plaintiff's evidence and at the close of all the evidence had also been denied. Four instructions were given for the plaintiff; thirty-one instructions were given for the two defendants; and no instructions tendered by the defendants were refused. On this appeal no questions are raised on the pleadings, the admission or exclusion of any evidence, or the instructions.

The amended complaint, in substance, alleged, so far as now material, that the defendants sold or gave alcoholic beverages to Danhof and three other patrons and caused their intoxication; that Danhof and those patrons, as a direct and proximate result thereof, engaged in a fight, scuffle, or drunken brawl with one Harold Morris; and that as a direct and proximate result thereof Danhof suffered certain personal injuries and has now become totally and permanently disabled. The defendants' answers, so far as now material, denied such allegations.

It is the theory of the defendants that (1) their motions for judgment notwithstanding the verdict should have been allowed because, as a matter of law, the alleged injuries of Danhof and the consequent injury to the plaintiff wife in her means of support were caused by the independent, intervening, wilful, and wanton act of a third party, Harold Morris, the sole cause of the beating Danhof received was an affair he'd had with Vernetta Morris, wife of Harold, the injuries were not in any way related to the alleged intoxication of Danhof, were not a proximate result of any such intoxication, and hence were not in consequence of the intoxication within the meaning of the Dram Shop Act, and because, as a matter of law, the plaintiff wife was an active and willing agent in procuring her husband's injuries, thereby contributing to her own damages, and that she is not an innocent suitor under the Act; and (2) their motions, in the alternative, for a new trial should have been allowed because the verdict is contrary to the manifest weight of the evidence.

Although there are some conflicts in the evidence, which we shall endeavor to note and observe, it substantially appears therefrom that: May Danhof, the plaintiff, 48 years old, is the wife of Cornelius P. Danhof, and on February 24, 1954 (the date of the alleged injury), and prior thereto, Danhof was employed by the City of Lacon, as Chief of Police and maintenance man; his salary was $255 per month, and he contributed something like $200 per month for the support of his wife. Sometime prior to this date and for more than eleven months, he was acquainted with one Harold Morris and Vernetta Morris, his wife, 33 years old, also of Lacon. Mr. and Mrs. Danhof and Mr. and Mrs. Morris had been friends for some years. Danhof, for more than a year prior to the occasion in question, had carried on an affair with Vernetta Morris and had frequently engaged in sexual relations with her. May Danhof, the plaintiff, knew of the affair between her husband and Vernetta Morris and had protested incessantly to him about it. Two days prior to February 24, 1954, the plaintiff had filed a Notice of Intention to obtain a divorce from Danhof in the Circuit Court of Marshall county; and on February 24th, she had put Danhof's clothes out on the porch of their home and had told him that after that day he'd have to get out. Harold Morris was living with his wife, Vernetta, and three children; he had had some reason to believe an affair was going on between his wife and Danhof; he had warned Danhof on a prior occasion to stay away from her or else something would happen, though he'd never threatened bodily harm to Danhof; and, strangely, Danhof and Morris apparently continued their friendly relations even after Morris' knowledge of Vernetta's and Danhof's conduct. Morris had assisted Danhof in his duties with the City of Lacon, and had borrowed money from Danhof after he had information about the affair. He had previously seen his wife with Danhof at "the tavern," though what tavern he did not say, and he admitted that he was unable to control her. Morris was 5' 5" tall, weighed 125 lbs., and was 34 years old; Danhof was 5' 7" tall, weighed 195 lbs., and was 51 years old. May Danhof had one artificial leg and the other leg bothered her at times. She had on one prior occasion taken Vernetta out in the country, beat up on her, and tried to explain to Vernetta what she was doing to the Danhof home and children.

On February 24, 1954, May Danhof, while driving in Lacon, saw her husband at Duffy's Tavern, operated by one of the defendants, between 5:30 and 6:00 in the evening, in company with Vernetta and certain other persons. After so seeing her husband, she had dinner, and thereafter drove by the Morris house about 7:00 p.m., talked to Harold Morris, and told him Danhof and Vernetta were going out together. Morris went to "the tavern," evidently Duffy's, to see if Danhof and Vernetta were still there, and, not finding them, he came home. Later that evening the plaintiff went back to the Morris home; Morris suggested they might be in Chillicothe; it was both his and Mrs. Danhof's idea to go looking for Vernetta and Danhof; Mrs. Danhof had never gone looking for Danhof before; at his request she took Morris and Morris' 4-year-old daughter in her car to Chillicothe, — Morris said he was looking for Vernetta to bring her home, — he was not sure who she was with, — and they drove up to and stopped at Hank's Tavern, operated by the other defendant, at about 8:00 p.m.

As she drove up to the tavern, Danhof, her husband, and Vernetta Morris were in or were just preparing to get into Danhof's car. Morris jumped out of May Danhof's car before it fully stopped, she remaining in the car, and immediately ran toward his wife, saying: "I have caught up with you." He was very angry. Vernetta had stepped out of Danhof's car in the meantime. Before Morris caught up with Vernetta, Danhof got out of his car, tried to stop Morris, but could not, and said to Morris, in substance: "Let's talk it over — I was just going to take her home." Morris answered, in substance — "You have explained to me for the last time you . . .," cursing him. Then Morris hit Danhof, but did not knock him down. Danhof stood, dazed, started to go, staggered a few steps, or stumbled, or tripped, and finally fell, hit his head on the side of the building, and went down. Vernetta and her sister, Mrs. Niles, say the plaintiff was out of her car and was urging Morris to strike Danhof, but the plaintiff denied that, and said she continued to remain in her car during the altercation. Danhof said the plaintiff made no statement of any kind, so far as he heard, the plaintiff says she said nothing, and Vernetta's and Mrs. Niles' testimony is the only evidence to the effect the plaintiff urged Morris to strike Danhof. Danhof says that he tried to throw up his hands when Morris started to strike him, but he could not defend himself because he was too intoxicated. After Morris hit Danhof he again went after his wife, dragged her over to May Danhof's car, and tried to put her into it, but she escaped. Morris then hit one Martin, who, meanwhile, had come out of the tavern, with a rock and knocked him down twice. Then he returned to Danhof, who was lying near the corner of the building, and kicked him in the head and cursed him.

May Danhof then, with Morris, drove away in her car. She did not try to determine Danhof's condition at the moment, but drove around the block and on returning in about 5 minutes saw him sitting up, took the keys out of his car, and she then returned to Lacon. She testified on cross-examination "I never saw anyone so mad and so little to do so much as he did. In a space of five minutes, he knocked Floyd Martin down twice, drug his wife by the hair of her head to my car, and hit Pelie twice in the face." She also testified in a deposition as to the conduct of Morris after leaving the scene of the incident with her in her car to return to Lacon, — "He was real excited, and he was still mad, and he said he wished he had beat him up sooner. He wished he had listened to me sooner." She reported the incident to the Mayor of Lacon, Danhof's employer, and later went with the Mayor and his wife to see Danhof that evening at the hospital in Peoria and stayed until early morning. The occasion of February 24th was the first time either Morris or May Danhof had found Danhof and Vernetta together.

Dr. Frank Green examined Danhof between 8:00 and 10:00 p.m. that evening and determined that he should be hospitalized. He was conscious, but unable to talk or move his right arm and leg. His face was badly cut. He was suffering from a cerebral concussion, though he had no fractured skull. He was paralyzed on the right side. His injuries are permanent.

The plaintiff and Morris testified that Danhof was drunk at the time, and so did Danhof, though some other witnesses said he was not intoxicated, the other witnesses who so testified being Vernetta's sister, Mrs. Niles, the man, Floyd Martin, whom she was with, Vernetta (all of whom had been with or around Danhof during the late afternoon and early evening, and all of whom had been doing some drinking themselves), the bartender at one of the defendants' taverns, and another patron at Hank's Tavern. Danhof testified that he drank 20 beers and 5 glasses of whisky at Duffy's Tavern that afternoon and evening between 3 to 4:30 p.m. and 5 to 6 p.m.; Vernetta, her sister, Mrs. Niles, and Floyd Martin were there; others said he had less to drink, but there is no dispute but that he was served some alcoholic liquor; Vernetta had left Duffy's Tavern about 5:30 p.m., had gone home, and had prepared dinner for her husband and children; Danhof evidently left Duffy's Tavern later, picked up Vernetta, who had told her husband she was going out to make some arrangements about attending someone's funeral, and, with her, he arrived at Hank's Tavern at about 7:30 in the evening; Vernetta's sister, Mrs. Niles, a young daughter of Mrs. Niles, and Floyd Martin accompanied Danhof and Vernetta, in another car, to Hank's Tavern; and Danhof said he drank 6 junior beers at Hank's Tavern. Others, however, again said he had less than that to drink at Hank's but, here also, there is no dispute but that he had there been served some alcoholic liquor.

Danhof and Vernetta generally met in "a tavern" during the period they had been running around together. Danhof and Vernetta had been together, with Mrs. Niles and Martin, at Hank's Tavern, at least, on other prior occasions. Floyd Martin, who had been with Mrs. Niles, Vernetta's sister, and in the company of Danhof and Vernetta, in Duffy's and Hank's Taverns, was employed as a part time bartender at Duffy's. The fact that Danhof and Vernetta were seeing each other had been mentioned to the proprietor of Duffy's, though she said she did not believe it. Danhof was also known by the proprietor of Hank's Tavern; he had been there before; and the bartender at Hank's knew Danhof, Vernetta, Mrs. Niles, and Martin.

The first real issues seem to be whether the injury to the plaintiff in her means of support was "in consequence of the intoxication," i.e., whether Danhof's intoxication was a 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. Where the action is for an injury allegedly resulting "in consequence of the intoxication" of any person, the intoxication must be a proximate cause of the injury; the defendant need not, however, have foreseen the precise injury which results; also, the intoxication need not be the sole cause, or the last or nearest cause; it is sufficient as a proximate cause if it concurs with some other cause acting at the same time, which in combination with it causes the injury; but the injury must be a natural and probable consequence of the intoxication and be of such a character as an ordinarily prudent person ought to foresee might probably occur as a result of the intoxication: Whiteside v. O'Connors, supra; Economy Auto Ins. Co. v. Brown (1948) 334 Ill. App. 579. It is not the intention of the Dram Shop Act that the liquor alone, of itself, exclusive of other agency, should do the whole injury: Schroder v. Crawford (1880) 94 Ill. 357.

[2-5] The question presented by the defendants' motions for judgment notwithstanding the verdict, therefore, is the rather narrow one of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorably 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 Danhof, as a proximate result of his intoxication. On such motions we are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts; a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence; and if there be a competent evidentiary basis for their verdict the jury may disregard or disbelieve alleged facts inconsistent with their conclusion. 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 ...


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