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Vandeveer v. Preston

FEBRUARY 26, 1957.

RONALD VANDEVEER, A MINOR, BY EUNICE SEAMAN, NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

GEORGE W. PRESTON, D/B/A PRESTON'S LIQUOR AND FOOD, ET AL., DEFENDANTS. ARTHUR MAGRINI, D/B/A LIQUORETTE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Champaign county; the Hon. CHARLES E. KELLER, Judge, presiding. Affirmed.

JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.

This is an appeal by plaintiff from a judgment in favor of defendant Arthur Magrini, entered upon a jury verdict in an action for damages under the Statute commonly referred to as the Dram Shop Act. (Sec. 135, Chap. 43, Ill. Revised Statutes 1953.)

The suit was brought by Ronald Vandeveer, a minor, by his next friend against Arthur Magrini and George W. Preston. The complaint charged that the defendants brought about the intoxication of Donald Boucher; that while so intoxicated he operated an automobile in which Dorothy Raner, plaintiff's mother, was riding; that he so operated the said automobile as to bring it into collision with a telephone pole causing injury to and the subsequent death of Dorothy Raner; and that as a result thereof, plaintiff was injured in his means of support.

At the close of plaintiff's evidence, the court allowed the motion of defendant Preston for a directed verdict. The jury returned a verdict in favor of the defendant Magrini. Plaintiff's post-trial motion for judgment notwithstanding the verdict and for a new trial was overruled.

Facts not appearing to be disputed are substantially that on September 5, 1954, decedent, accompanied by Darlene Gunn, drove her car from Charleston, Illinois to Rantoul, Illinois, where they arrived at about 8:30 p.m. and were joined by Donald Boucher, who was 19 years old, and Walter Guziec; that with Boucher driving, a stop was made at defendant's place of business, known as the Liquorette, where four 6-Packs of beer were purchased and placed in the car; that the party then proceeded to a drive-in theatre where they remained until about 11:30 o'clock; that while at the theatre they consumed the beer or the major portion thereof; that Boucher and Guziec each drank about six bottles; that Darlene Gunn drank one and one-half bottles and Dorothy Raner had three or four bottles; that with Boucher driving, the car proceeded over country roads towards the Rantoul Air Base; that the car made a stop along the road a short distance from where the accident occurred, but as to whether any beer was consumed by members of the party at that time is not clear; that in making a turn at a T-intersection, the car left the road and crashed into a telephone pole; that all of the occupants of the car were injured; that the injuries sustained by Dorothy Raner caused her death and that decedent and plaintiff's father had been divorced and the latter was not contributing to plaintiff's support.

Points urged as warranting reversal are that (1) the verdict is against the manifest weight of the evidence (2) the court erred in its ruling as to the admissibility of certain evidence and (3) the court erred in giving instructions on behalf of the defendant and in refusing to give certain instructions on behalf of the plaintiff.

The basic question confronting the jury in this case was whether or not Boucher was intoxicated. Darlene Gunn testified that in her opinion Boucher was under the influence of intoxicating liquor. She further testified that when she and decedent met Boucher he was sober; that at the drive-in theatre there was nothing about Boucher's manner of speaking which would indicate his intoxication; that he spoke normally and acted normally and behaved properly; that he acted as a sober person; that his conversation was clear and lucid; that while driving he had the car under control; that he sat behind the wheel paying attention to his driving; that the speed of the car just prior to reaching the intersection was about 70 miles per hour which was no faster than it had been earlier in the evening; and that her opinion as to Boucher's intoxication was based on his failure to answer certain questions which she asked of him while he was driving.

Walter Guziec testified that he was not intoxicated at the time of the accident; that he rode in the back seat of the car; that he did not know how fast Boucher was driving; that he heard no one say anything about the manner in which the car was being driven; and that in his opinion Boucher was not drunk at the time the accident occurred.

Dr. Elting Johnson testified that some four hours after the accident he detected the odor of alcohol on Boucher.

Boucher, who suffered a brain concussion in the accident, testified but had no recollection of events preceding the accident.

It thus appears that the opinions of the two witnesses who were in a position to observe the condition of Boucher prior to the accident were in direct conflict. The jury were not bound to accept the opinion of either as conclusive upon the question of Boucher's intoxication, but it was their special province to consider the same together with all the other facts pertaining to such question and determine therefrom where the truth lay. Matkins v. Fenorsky, 348 Ill. App. 125; Hudson v. Leverenz, 9 Ill. App.2d 96.

In deciding the weight to be accorded to Darlene Gunn's opinion that Boucher was intoxicated, the jury may well have considered the failure of this witness to give any basis for her conclusion. It was undoubtedly difficult for the jury to reconcile her statement that there was nothing in Boucher's manner different than normal with her opinion that he was under the influence of intoxicating liquor. The witness was not a casual observer of Boucher but was with him all evening and if his acts or speech evidenced lack of clearness of mind or of control of himself, it would seem that such condition would have been apparent to her. Failure of this witness to recall anything abnormal about Boucher's condition might well have been taken as corroborative of the opinion given by Walter Guziec.

As to whether all the evidence on the issue of the intoxication of Boucher including his admitted consumption of beer and the circumstances surrounding the accident preponderates in favor of plaintiff was for the jury to decide. While there was testimony that prior to the accident the car was being driven at 70 miles per hour, there was also evidence that it was under the driver's control and that no one in the car complained about the manner in which Boucher drove. The evidence also discloses that Boucher was driving on a country road with which he was not familiar; that it was either a mud or oiled road and that there were no signs or warnings as to its condition. These circumstances as shown by the evidence bear upon the question as to whether the manner in which Boucher drove tended to support plaintiff's charge of intoxication. However, the issue with which the jury was concerned was whether Boucher was intoxicated and not as to whether he was negligent in the operation of the automobile. We do not think that the evidence in the record as to the speed of the car alone compels a unanimity of opinion that Boucher was intoxicated.

It is only where the verdict of a jury is clearly and palpably against the manifest weight of the evidence that a reviewing court is justified in disturbing its finding on questions of fact. Citation of authority in ...


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