Appeal from the Superior Court of Cook County; the Hon. JOHN
E. PAVLIK, Judge, presiding. Affirmed in part, reversed in part
and cause remanded with directions.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken by Harry S. Feldman, defendant, from two judgments entered after a trial before a jury in the Superior Court of Cook County.
Anna Lee Lipscomb, individually and as administratrix of the estate of Judge Lipscomb, deceased, sued the defendant for damages due to the wounding of Page 430b Anna Lee Lipscomb and the death of Judge Lipscomb as a result of a shooting by one Albert Coppage, a part-time bartender employed by defendant Feldman. The trial court entered judgments in favor of the plaintiff individually and as administratrix on the verdicts of the jury. Each of the judgments was in the sum of $10,000. The jury also returned a verdict in favor of Harry S. Feldman and against Anna Lee Lipscomb, as administratrix and also individually, on count one of the complaint, which asserted claims under the Dram Shop Act. The court entered judgment in accordance with that verdict. The plaintiff, as administratrix and in her individual capacity, has taken a cross-appeal from that judgment of the court. The plaintiff in her dual capacity also filed in the trial court a motion, supported by affidavit and suggestions, asking the court to fix and tax reasonable attorney's fees in favor of the plaintiff and against the defendant in accordance with section 41 of the Practice Act, on the ground that the defendant, without reasonable cause and not in good faith, made a denial of plaintiff's allegation that the death of Judge Lipscomb resulted from the alleged assault upon him by Coppage. The court denied this motion, and the plaintiff also appealed from this order in her cross-appeal.
We will first consider the cross-appeal of the plaintiff. That cross-appeal is based upon the judgment of the court on count one of the complaint filed against the defendant by the plaintiff both in her individual and representative capacities. The court entered judgment on May 10, 1962. The defendant on July 25, 1962 filed a notice of appeal from the judgments of the court on count three of the complaint. On August 15, 1962 the plaintiff filed her notice of appeal from the judgment on count one. While we have considerable doubt as to whether the cross-appeal filed by the plaintiff is in accordance with rule 35 of the Supreme Page 430c Court, no motion was made to dismiss the cross-appeal and we will consider the appeal on its merits. (See Heine v. Degen, 362 Ill. 357, 199 N.E. 832; First-Trust Joint Stock Land Bank of Chicago v. Cutler, 286 Ill. App. 6, 2 N.E.2d 758.)
Count one of the complaint as amended was an action brought under the Dram Shop Act (Ill Rev Stats c 43, § 135). The theory of the plaintiff in this court is that Albert Coppage was served liquor in the tavern of the defendant, which caused in whole or in part his intoxication, and while in that condition he shot Judge Lipscomb inflicting wounds from which he died, with resulting injury to the plaintiff's means of support. At the conclusion of the evidence two specific interrogatories were submitted to the jury by the court upon the motion of the defendant. Both of the interrogatories applied to count one of the complaint. The interrogatories and answers were as follows:
Does the jury find from the evidence that at the time and place of the incident complained of Albert Coppage was intoxicated. Answer: No.
Does the jury find from the evidence Harry S. Feldman or his agent sold or gave alcoholic liquor to Albert Coppage. Answer: No.
The jury returned a verdict on count one for the defendant and against the plaintiff. The court entered judgment on the verdict. The plaintiff filed a post-trial motion in which she set out, among other things, that the verdict was against the weight of the evidence and that the court erred in instructing the jury. In that motion she further stated that the court had erred in its rulings on evidence during the progress of the trial. In the motion none of the instructions objected to are set out in full. In neither the abstract filed by the defendant nor in the supplementary abstract filed by the plaintiff are all the instructions Page 430d given abstracted, and the conference of the court on the instructions, if held, does not appear in the record. In the post-trial motion of the plaintiff the only reference to the special interrogatories is that "the Court erred in submitting the Special Interrogatories to the jury on behalf of the defendant, Harry S. Feldman."
In order for the plaintiff to recover on count one of the complaint it was necessary for her to prove to the satisfaction of the jury that at the time her husband was shot Coppage was intoxicated and his intoxication resulted from liquor either sold or given to him by the defendant. The plaintiff in her post-trial motion alleges that the verdict is against the weight of the evidence, but nowhere in that motion does she state that the answers returned by the jury to the special interrogatories were against the weight of the evidence. It is elementary law that where a general verdict is returned and special interrogatories are answered, the answers to the special interrogatories control the general verdict. In Biggerstaff v. New York C. & St. L.R. Co., 13 Ill. App.2d 85, 141 N.E.2d 72, we said:
"The plaintiff argues that the verdict was against the manifest weight of the evidence and that the answers to the special interrogatories were not responsive to the evidence. In his motion for new trial the plaintiff calls attention to the giving of the three interrogatories and only says that the court erred in submitting them to the jury. He made no motion to strike the answers to the interrogatories, nor did he allege that they were contrary to the manifest weight of the evidence, though in the motion he did urge that the verdict was contrary to the manifest weight of the evidence. In Forslund v. Chicago Transit Authority, 9 Ill. App.2d 290, we held that where a Page 430e finding is substantially conclusive of the fact upon which the issue of liability depended and the defendant had failed to object to the answer to the interrogatory in the motion for new trial, the reviewing court must consider the special findings to have been fully sustained by the evidence and in support we cited Voight v. Anglo-American Provision Co., 202 Ill. 462; Weinrob v. Heintz, 346 Ill. App. 30; Brant v. Chicago & Alton R. Co., 294 Ill. 606; and Brimie v. Belden Mfg. Co., 287 Ill. 11. In Rubottom v. Crane Co., 302 Ill. App. 58, the court said: `Under the authorities there are several ways by which a party may escape from being conclusively bound by the special finding of a jury: (1) by specific objection to the special finding on the motion for a new trial, or (2) by filing a specific motion to set aside the special finding when the motion for a new trial is made."
The answers to the interrogatories control the general verdict and negate the claim of the plaintiff for relief under the Dram Shop Act.
The plaintiff has in her post-trial motion objected to the submission of the interrogatories. In the record before us there is no showing that any objection was made at the time when the interrogatories were submitted. Without an objection appearing in the record we could under no circumstances consider the point urged by the plaintiff. Weinrob v. Heintz, supra; Worthen v. Thomson, 343 Ill. App. 62, 98 N.E.2d 142. Nor can we consider any objections purportedly made in the post-trial motion by the plaintiff with reference to instructions. Unless the objection to instructions is made at the conference on instructions any alleged error cannot be reviewed. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163; Seaquist v. Alexander, 34 Ill. App.2d 8, 180 N.E.2d 213. Page 430f
The trial court committed no error in denying plaintiff's post-trial motion as to count one of the complaint as amended. The judgment of the Superior Court on count one of plaintiff's amended complaint in favor of the defendant Harry S. Feldman and against Anna Lee Lipscomb is affirmed.
The second count was by the plaintiff individually and as administratrix against Albert Coppage for killing Judge Lipscomb and shooting Anna Lee Lipscomb. Albert Coppage was dismissed out of the case by the court on ...