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Navarro v. Lerman

APRIL 23, 1964.

CLIFFORD NAVARRO, ET AL., PLAINTIFFS-APPELLEES,

v.

HARRY LERMAN AND MARTIN LERMAN D/B/A 430 CLUB, AND SAM GOLDFARB, ET AL., DEFENDANTS-APPELLANTS. ON THE APPEAL OF MARTIN LERMAN, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Superior Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This case was brought under the Dram Shop Act (Ill Rev Stats 1955, c 43, § 135) to recover damages for personal injuries sustained by the plaintiff Clifford Navarro, who was stabbed by Willie Tooles while the latter was allegedly intoxicated. The jury returned a verdict of $3,000 and judgment for that amount was entered against the defendants Martin Lerman, the operator, and Sam Goldfarb, the owner, of a tavern located at 430 East 43rd Street, Chicago, where Tooles purchased the liquor which caused his intoxication. The assignments of error are that the verdict was contrary to the manifest weight of the evidence and that an incorrect instruction was given to the jury.

Navarro and his wife and Tooles and his wife lived in apartments above the tavern. They had been friends for years. On April 4, 1955, about 10:00 p.m., Navarro went upstairs to the Tooles' apartment and rang the bell. According to Navarro, Tooles opened the door with a knife in his hand, asked what Navarro wanted, cursed, told him to go away and closed the door. As Navarro started down the stairs, Tooles reopened the door, ran out, lunged at him, and cut him on the head and in the upper abdomen with a switchblade knife. Tooles then kicked him, knocked him down, got on top of him, choked him with his left hand and attempted to stab him again with his right. Navarro grabbed the hand that held the knife and twisted it until the knife fell; he then seized the knife and stabbed Tooles on the shoulder and in the back. Tooles died from the stabbing; Navarro was hospitalized for six or seven weeks.

The evidence as to Tooles' intoxication was as follows: Harry Lerman, the manager and bartender of the tavern, which was called the "430 Club," said that on April 4th Tooles was in and out of the tavern during the day and night and was drinking with William McClaine and other people, and at one time with Navarro. On cross-examination he said he assumed Navarro was drinking but did not see him do so.

McClaine testified that he and Tooles got together about two o'clock that afternoon; that from 2:00 to 8:30 p.m. Tooles bought three and a half pints of whiskey at the 430 Club and consumed about two pints, that Tooles was drunk at 8:00 p.m., but he bought another pint at the same place about 9:00 p.m. and was drunk when Navarro came to the door. Prior to Navarro's arrival, Tooles had struck his wife with a hammer and thereupon McClaine said he was leaving; he did so just as Navarro arrived; he heard no argument and he did not witness the stabbing. In a statement to the police after the occurrence, McClaine had said that Tooles had been drinking whiskey, but that he was not drunk. He also had said that there had been an argument between Tooles and Navarro in which Navarro took the side of Tooles' wife and Tooles had said: "It looks like you are going against me."

Navarro testified that Tooles and his wife came to his apartment on the morning of April 4th and drank coffee and a pint of whiskey while he drank beer. He said he did not see Tooles again until he went to their apartment. He denied drinking with him at the 430 Club or being in it that day.

Mrs. Navarro testified that her husband drove her home from work after 7:00 p.m.; thereafter, as she left her apartment to visit her sister who was sick, she met Tooles and McClaine at the front door. She saw Tooles come out of the 430 Club with a half pint of whiskey and saw him turn the bottle up and drink out of it. She said he was intoxicated. Later on after returning home, she heard Tooles swearing and what she thought was fighting between him and his wife. She went up the stairs and found her husband leaning against the wall with blood gushing from him. She carried him downstairs to McClaine's auto, got McClaine out of the 430 Club and called the police. McClaine took him to a hospital.

The only contrary evidence about Tooles' intoxication was the testimony of the police officer who investigated the stabbing. He said that he did not smell alcohol on Tooles' breath and that in his opinion he had not been drinking.

It is obvious that the verdict cannot be said to be against the manifest weight of the evidence — unless, as suggested by the defendants, the testimony in behalf of the plaintiff is completely discounted. The defendants insist that this is exactly what should be done because, they say, the plaintiff and his witnesses were discredited, their testimony was inherently improbable and was patently tailored to take advantage of Tooles' death. They point out that Mrs. Navarro had said in a deposition that she had been in the 430 Club for a few minutes that day, and in her testimony she said she had not; that the bartender testified Navarro had been there too; that the history Navarro gave of his work record was inaccurate, in one respect, and that McClaine's statement to the police differed from his testimony in court, in the two respects previously mentioned. They argue that the whereabouts of Navarro prior to the stabbing is not shown and that more likely than not he was in Tooles' apartment and brought on the attack by provoking his longtime friend; they argue further that McClaine's testimony that he rushed out of the apartment and did not see the stabbing is improbable.

The discrepancies in the testimony of Navarro and his wife were comparatively minor. Whether Navarro or his wife had been in the tavern were questions of fact for the jury. No one, including counsel for the defendants, asked Navarro where he had been immediately prior to the altercation and McClaine's testimony that he did not see the stabbing, while it may be questionable, is not inherently improbable. It must be remembered that Mrs. Navarro found him in the tavern after she had taken her husband to his car.

The testimony as to the occurrence was uncontradicted, except insofar as McClaine was impeached by his statement to the police concerning words between Tooles and Navarro preceding the occurrence. The testimony as to Tooles' consumption of whiskey was contradicted only by the police officer who saw the dying Tooles and who said that in his opinion Tooles had not been drinking. The defendants argue that the plaintiffs' evidence as to intoxication should be discarded and the testimony of the officer accepted "as the sole believable testimony in the case." This was for the jury to decide. It was the jury's province to consider the testimony, the extent to which the plaintiff and his witnesses had been discredited and the extent to which they or the police officer should be believed. In appraising the testimony of the officer, the jury could well have weighed his opinion against the knowledge of another witness for the defense, the bartender, who saw Tooles drinking that day and that evening.

It was the jury's responsibility to decide all controverted questions of fact. The jury resolved these questions in favor of the plaintiff; its verdict was supported by substantial evidence and certainly was not against the manifest weight of the evidence.

The instruction which is urged as reversible error is one defining intoxication and was taken from Illinois Pattern Instructions (IPI 150.15). It is as follows:

"A person is `intoxicated' when as a result of drinking alcoholic liquor there is an impairment of his mental or physical faculties so as to diminish his ...


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