APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Rock
Island County; the Hon. LEONARD E. TELLEEN, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1959.
This court has allowed plaintiffs' petition for leave to appeal from a judgment of the Appellate Court, which set aside a jury verdict in the circuit court of Rock Island County awarding $20,000 as damages under the Liquor Control Act to plaintiffs, the wife and minor children of the decedent, Donald Hocker, allegedly killed by an intoxicated person served alcoholic liquor by the defendant tavern owners.
The salient issue on this appeal is whether there is any evidence in the record in support of the essential allegation in the complaint that the decedent was killed by an intoxicated person served liquor by defendants. Other issues relate to the admissibility of evidence, and the propriety of particular instructions.
From the record it appears that Donald Hocker, age 31, and his family, consisting of a wife and three children, lived at Colona, Illinois, and that he supported them out of his earnings of approximately $80 per week as an employee of the John Deere Harvester plant. At about 1:00 P.M. on Saturday, February 23, 1952, Hocker entered the White Mule tavern, operated by the defendant Max O'Klock, and remained there all afternoon, playing euchre with some men and drinking beer. They drank a round of beer after each of many games. Around 2:00 P.M. a stranger, wearing a black leather motorcycle jacket and cap, who referred to himself as "Nichols," entered the tavern. "Nichols" spent the afternoon drinking, pacing between the card game and the bar, making a pest of himself with a woman sitting at the bar, exchanging smart remarks with Hocker, and otherwise acting edgy and fidgety.
Although "Nichols" and Hocker were not previously acquainted, by 7:00 P.M. they had become drinking companions, and left the White Mule together in an intoxicated condition. They drove off in "Nichols's" car, an old model black four-door Buick, with "Nichols" at the wheel and Hocker to his right, leaving Hocker's Ford station wagon behind, parked at the White Mule. They were next seen driving into Edward Hasty's service station, where the attendant refused their request to park in the driveway while they went into Van's Club, an adjoining tavern. They parked in the street, entered the club, operated by defendant Rene Van Nevel, and began drinking more beer at the bar. Noting that they appeared "loaded," the barmaid asked the proprietor's wife to come out and see whether they should have anything more to drink. According to the wife's testimony, the men had beer bottles before them and were so intoxicated they could hardly stand up. Hocker even fell asleep at the bar. She ordered the barmaid not to serve any more liquor to them. After being refused more drinks, Hocker and "Nichols" left Van's Club together, some time between 8 and 9 P.M. That was the last time Hocker was seen alive.
It appears further that at 1:16 A.M., Sunday, February 24, 1952, officers Gene Gellerstedt and Keith Cordell of the Moline police force proceeded, pursuant to a report, to an address in Moline where they found a man asleep in the front seat of an old 4-door Buick sedan, with the motor running. The name on his identification card was E.R. Beasley, and from his condition it was apparent that he had been drinking heavily, and that he had vomited and urinated on himself. He did not appear frightened when awakened by the police officers, but explained that he had formerly lived at the address where he was parked, and wanted to sleep a while before driving home. The officers escorted him to a brightly lighted A & P parking lot, where they left him, after making a routine and cursory search of the car, which did not include the glove compartment.
At about 3:45 A.M. the witness Charles Pool, a Moline garageman, who was driving his wrecker north on 41st Street, saw the body of a man in a ditch on the right side of the road. The body was lying on its right side with the head, which was matted with blood, resting on the right arm in a pool of blood. There was a bullet hole behind the left ear, and one around the belt. Pool ran to a neighboring house to telephone the police, and they and the coroner arrived shortly thereafter. Detective sergeant Glenn L. Peterson recognized the body as that of Donald Hocker. Both Peterson and Pool observed tire marks on the shoulder of the road close to the edge of the ditch and near the body. Pool identified the marks at the time as being made by Firestone tires. Although those present were told not to disturb the marks, there were no plaster casts made.
Examination of the body at the scene revealed that the blood had congealed on Hocker's head and on the ground, and that his body was cold and stiff, rigor mortis having set in. The body was taken to the mortuary between 4 and 5 A.M., where a pathologist performed an autopsy. Two .38-calibre bullets were recovered from the body, one having entered behind the left ear and lodged over the right eye, and the other having lodged in the abdomen.
In the opinion of coroner Leslie Banning, who saw the body of decedent while it was still lying in the ditch on the side of the road, Hocker had been dead between four or five hours. This opinion, admitted over defendants' objection, was based upon the coroner's 11 1/2 years of experience in his job, processing between 450 and 500 cases yearly, and upon the condition of the body, including the degree of rigor mortis as affected by the weather. The coroner's physician, testifying for defendants, stated that the onset of rigor mortis is affected by many conditions besides weather, and that the degree of rigor mortis is not too helpful in ascertaining the time of death. The pathologist, who performed the autopsy at approximately 5:00 A.M., testified that rigor mortis does not usually set in until 8 or 10 hours after death, but that exposure to cold would tend to decrease the time, consequently, in his opinion Hocker had then been dead anywhere from two to five or six hours.
Sergeant Peterson, who was in charge of the investigation of the death of Hocker, ascertained that Beasley, the man found drunk and asleep in the parked car at 1:16 A.M. Sunday, was the same person as the man known as "Nichols." At the trial, moreover, Beasley was identified as Nichols, Hocker's drinking companion with whom he drove off, by persons who had been at the White Mule and at Van's Club that Saturday, and saw the men together. On March 14, 1952, approximately three weeks after Hocker was killed, Beasley was arrested at the trailer where he lived in London Mills, after Sergeant Peterson discovered a .38-calibre Spanish-make pistol concealed in the glove compartment of Beasley's 1939 model 4-door black Buick sedan, which had Firestone tires on its rear wheels and was parked in someone's garage. The gun was not loaded, and there was no evidence of blood stains in the car.
On the basis of substantially the foregoing evidence, the jury found that Beasley killed Hocker, and that defendants, who had served him liquor resulting in his intoxication, were guilty and liable for damages under the Liquor Control Act in the amount of $3,000 to Vivian I. Hocker, $6,500 to Donald A. Hocker, $7,500 to Donna Lynn Hocker, and $3,000 to Harry W. Hocker, for their loss of support as a result of Hocker's death. Defendants appealed from the judgment entered on the verdict, and the Appellate Court reversed the judgment and entered judgment for defendants notwithstanding the verdict, on the ground that there was no evidence in the record in support of the conclusion that Beasley killed Hocker.
The propriety of the Appellate Court's judgment for defendants notwithstanding the verdict presents the issue of whether or not there is any evidence in the record to support the jury verdict. This is a question of law (Robinson v. Workman, 9 Ill.2d 420), and therefore, within our reviewing jurisdiction as provided in section 92(3)(b) of the Civil Practice Act. Ill. Rev. Stat. 1957, chap. 110, par. 92(3)(b).
In the instant case defendants' theory in the trial court was that plaintiffs need only establish that death of the decedent Hocker deprived them of their support, and that such death resulted from a direct affirmative act of Beasley, an intoxicated person to whom defendants had sold liquor. The defendants squarely presented those issues of fact ...