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Busser v. Noble

APRIL 29, 1959.

MARY BUSSER, PLAINTIFF-APPELLANT,

v.

DONALD NOBLE, HAROLD K. PIEPER, ADMINISTRATOR OF THE ESTATE OF DONALD E. PIEPER, DECEASED, JACK SCHLUETER, HAROLD F. CONSIDINE, JOHN L. MOORE, RUTH K. CARNEY, FRANK DEMPSEY AND VIOLET DEMPSEY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lee county; the Hon. ROBERT L. BRACKEN, Judge, presiding. Affirmed in part, and reversed and remanded in part.

PER CURIAM.

Rehearing denied October 7, 1959.

On October 18, 1952, about 12:30 a.m., the plaintiff, Mary Busser, was a guest passenger in a vehicle driven by Donald Pieper. The vehicle was traveling north on Route 26 about 2 1/2 miles south of Dixon, Illinois, where it collided with one driven in the opposite direction by Donald Noble. Shortly thereafter Robert Lizer drove his car in a northerly direction around the two damaged vehicles, and Jack Schlueter drove his car in a southerly direction into the wrecked vehicles. All of the drivers and passengers in the vehicles involved were minors. As a result of the collision Pieper was killed and plaintiff was injured.

To recover damages for her personal injuries plaintiff filed a twelve-count complaint against the drivers of the vehicles and the operators and owners of certain taverns. Counts I, II, III and IV were directed against drivers Noble, Lizer, Schlueter, and the administrator of driver Pieper's estate, respectively. Pieper was charged with wilful and wanton misconduct, and the other drivers with negligence. The rest of the counts were directed against tavern operators or owners. Recoveries under section 14, Art. VI of "An Act relating to alcoholic liquors," (Sec. 135, Ch. 43, Ill. Rev. Stat.) were sought against Harold Considine in count V and against John Moore in count VII, on the ground that they furnished alcoholic liquor to Pieper and contributed to his intoxication, in count IX against Ruth Carney as the owner of the premises operated by Moore, and in Count X against Frank Dempsey because he furnished liquor which contributed to Noble's intoxication. In count XII it was alleged that Dempsey had conveyed his tavern to Violet Dempsey in order to defraud his creditors, and plaintiff prayed that the conveyance be decreed void as to her. Under counts VI, VIII and XI against Considine, Moore and Dempsey, respectively, recoveries were sought upon alleged violations of section 12, Art. VI of "An Act relating to alcoholic liquors," (Sec. 131, Ch. 43, Ill. Rev. Stat.), in selling, giving or delivering alcoholic liquor to the minors, Pieper and Noble. Counts VII and VIII were before this court on a previous appeal, and a default judgment entered by the circuit court against Moore on those counts was reversed and remanded in 8 Ill. App.2d 268.

After remandment to the circuit court, counts V, VII, IX and X were severed, certain counts were amended, answers filed, and the cause proceeded to trial on the counts against the drivers and the counts based upon the unlawful sale of liquor to minors. Lizer was dismissed as a defendant in count II on plaintiff's motion. At the conclusion of plaintiff's evidence, the trial court directed the jury to return verdicts finding all defendants not guilty. On July 26, 1957, the court ordered that judgment be entered on the verdict and that all remaining counts be continued for trial at a time to be set by the court. On December 23, 1957, plaintiff's post trial motion for a new trial was overruled and judgments were entered in favor of all defendants in counts I, II, III, IV, VI, VIII, XI and XII. Defendants in the severed counts moved to dismiss the counts against them on the ground that certain controlling issues therein had been decided by the adjudication on the other counts. The court allowed the motions to dismiss and then entered a similar judgment in favor of the defendants in counts V, VII, IX and X. This appeal followed.

Defendant Noble suggests that the appeal should be dismissed because the record fails to show the entry of final judgments. We have examined the transcript and find that the order made on July 26 was not a final judgment, but that entries made on December 23 provide that the named defendants go hence without day and that they recover from the plaintiff their costs of suit. These entries are sufficient to constitute final and appealable judgments.

Defendants Considine and Dempsey question the propriety of taking a single appeal from two judgments. The first judgment on December 23 was entered on verdicts returned in favor of all defendants pursuant to a peremptory instruction as to certain counts, and the second judgment was entered on motion of some of the same defendants to dismiss other counts in the same complaint. Both judgments were entered on the same day. Under such circumstances we are of the opinion that a single appeal was sufficient and that the record of the two final judgments entered on December 23 is properly before us for review. In any event we prefer to pass upon the merits and decide the real issue on this appeal, namely, whether it was proper for the trial court to direct a verdict for defendants. In order to decide this issue it is necessary to examine the evidence.

The evidence shows that plaintiff, 17 years of age, went to a tavern on the evening in question with a girl friend and had some beer, the exact amount not being shown. This tavern was the Palms, operated by the defendant, John Moore. Later in the evening, Donald Pieper, aged 19, who had been to a football game with some friends, met plaintiff at the Palms. He had some beer there. Thereafter the young people got into Pieper's car and went to the tavern operated by the defendant Considine. Pieper had a whiskey bottle in his car.

At Considine's tavern plaintiff again had some beer, the exact amount not being shown. There is some evidence that Pieper had 3 or 4 beers at Considine's and 3 mixed drinks. He became loud and boisterous and engaged in a violent argument about religion. He then went to his car and plaintiff followed him and they drove off after some altercation. They were followed shortly thereafter by some other young people riding in a car driven by Robert Lizer. Lizer testified that immediately prior to the accident Pieper was driving approximately 75 or 80 miles per hour and that as Pieper went over a bridge immediately before the collision his tail lights did not flash so as to indicate that he was applying his brakes.

In the meantime Robert Noble, driver of one of the other vehicles, had gone into a tavern operated by Frank and Violet Dempsey. Noble was accompanied by the witness Blackburn, and Blackburn purchased six cans of beer at this tavern. Noble had one can of beer. He was driving his vehicle in a southerly direction on Route 26 and a car driven by the defendant Jack Schlueter was also going south behind the Noble vehicle.

The Noble and Pieper vehicles collided violently north of the bridge and immediately thereafter the Schlueter car collided with the rear of the Noble car. Pieper was killed and the plaintiff was seriously injured. The evidence indicates that the Noble and Schlueter cars were on their own side of the highway after the collision. The Pieper car was partly in both lanes of the highway and there was some evidence indicating that the Pieper vehicle skidded nearly 400 feet prior to the impact.

Plaintiff attempted to testify that the Noble vehicle was over the center line just prior to the collision, but this evidence was rejected on the theory that plaintiff was an incompetent witness because one of the defendants was the administrator of the estate of Donald Pieper.

Based on the foregoing evidence the trial judge directed a verdict against the plaintiff on the counts directed against the three drivers, and also on the counts based upon the sale of intoxicating liquor to minors. On the basis of the same evidence, the trial judge entered a judgment upon the counts based upon the dram shop act which had previously been severed, the basis of this ruling being that the evidence showed that plaintiff was a participant in the drinking and consequently was barred as a matter of law from contending that she was an innocent party and entitled to invoke the dram shop act.

[3-6] The vital issue is whether the trial court should have entered a directed verdict, and in this connection it should be borne in mind that the right to a jury trial is a fundamental right. A party should not be deprived of his right to a jury trial if he has produced any evidence which proves or tends to prove his claim, or from which reasonable inferences can be drawn which tend to support his claim. In determining the question, all of the evidence favoring the party must be regarded as true and it must be viewed in that light which is most favorable to said party. The question of whether the party has proved his claim by a preponderance of the evidence and the question of the credibility of the witnesses are not involved in determining whether a verdict should be directed, but such questions are questions of fact for the jury to decide. One of the leading ...


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