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Dunkelberger v. Hopkins

JUNE 25, 1964.

DONNA DUNKELBERGER, PLAINTIFF-APPELLANT,

v.

JAMES W. HOPKINS, ET AL., TRUSTEES, SHIRLEY CARTER, THAD NIEMIRA, TRUSTEE, UNDER TRUST NO. 47716, JOE LEO, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. RAYMOND DRYMALSKI, Judge, presiding. Affirmed in part, reversed in part and remanded with directions.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 11, 1964.

Plaintiff brought this action to recover for injuries allegedly received when the car in which she was riding as a passenger was driven into a cement abutment. Liability was predicated on Article VI, section 14 of the Liquor Control Act (c 43, § 135, Ill Rev Stats 1955), commonly referred to as the Dram Shop Act.

At the close of plaintiff's case, each of the Dram Shop defendants made separate motions for directed verdicts which were allowed by the trial judge; the jury returned a verdict of not guilty as to all of the defendants, and judgment was entered thereon.

Plaintiff's testimony in her own behalf was, essentially, as follows. She and her roommate and her roommate's boy friend visited the Tennessee Corral, a tavern in the City of Chicago, on December 14, 1956. James Hopkins was employed there as a musician. About 10:00 p.m. the said James Hopkins came over to the booth where the plaintiff and her friends were sitting and started a conversation. While plaintiff's friends were still at the tavern, Mr. Hopkins asked plaintiff to stay until he finished work and said that they would then go and have a "bite to eat." Plaintiff's friends left at about 11:30 p.m., but plaintiff remained. During the course of the evening she noticed that the patrons of the tavern would purchase drinks and send them up to the members of the band, and that James Hopkins, being a member of the band, would join in the drinking. She had three drinks while she was there, but she did not buy any for Mr. Hopkins, nor did he buy any for her. During the breaks of the band, Mr. Hopkins would mingle with the patrons and would stop momentarily to talk to her, but at no time while they were at the Tennessee Corral did she drink with Mr. Hopkins. At approximately 3:15 a.m., December 15, 1956, after James Hopkins finished work, they left the Tennessee Corral and went to Tex Carter's, a nearby tavern, where Mr. Hopkins told her he was to meet some friends. Mr. Hopkins was sober at this time. When they arrived at Tex Carter's, they met three girls and two boys sitting in a booth. Plaintiff remained in the booth with the girls and drank a seven-up while Mr. Hopkins went to the bar with the boys and had a drink. They remained at Tex Carter's for about twenty or thirty minutes, and when they left Mr. Hopkins was still sober. She was under the impression that she was being taken somewhere to get something to eat. Instead, Mr. Hopkins drove her to the "66" Club, a tavern located to the west of the City of Chicago, about a forty-five minute drive from Tex Carter's. They arrived at the "66" Club at about 5:30 a.m. and stayed for about fifteen or twenty minutes. She had nothing to drink while she was there. After leaving the "66" Club, they went to the Pink Pony, another tavern in the area. She didn't know that the Pink Pony was a tavern until they got there. While they were there she stayed in a booth while James Hopkins went to the bar. He brought her a drink and then returned to the bar where he was drinking. She took a few sips of her drink while sitting in the booth. He came back to the booth once more for a few minutes, but he did all of his drinking at the bar. They left the Pink Pony between 6:30 and 6:45 a.m. and started home. Upon getting back into the city Mr. Hopkins started to drive erratically, and when he came to a stop for a red light at or near 47th and Montrose, she asked him to pull over to the curb, but the light changed and "he stepped on the gas." She hollered a warning about the cement abutment and they then collided with it.

She also testified concerning the extent of her injuries and her lost time resulting from the accident.

In addition she put two doctors on the stand. One of her doctors had examined plaintiff and Mr. Hopkins shortly after the accident and he testified as to her sobriety and Mr. Hopkins intoxication. The other doctor testified in his capacity as attending physician concerning her injuries.

Plaintiff contends that by the above testimony she presented a prima facie case under the Dram Shop Act, and that the trial judge erred in directing the jury to find the issues in favor of the defendants.

Article VI, section 14 of the Liquor Control Act (c 43, § 135, Ill Rev Stats 1955), reads in pertinent part as follows:

"Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid, . . ."

As to defendant Joe Leo, the complaint alleged that he was engaged in the sale of intoxicating beverages at 3118 North Broadway, Chicago, Illinois. This was admitted in his answer, but he denied that he sold or gave alcoholic liquors to James Hopkins on the date in question. Plaintiff testified regarding James Hopkins' presence at a tavern called the Tennessee Corral on North Broadway, but there was no showing that the Tennessee Corral was located at the 3118 address or that James Hopkins or the plaintiff were at any time in a tavern at such address. On the record before us there was a complete failure to connect defendant Joe Leo with this cause of action, and the trial judge correctly directed a verdict in his favor.

The complaint, coupled with the answers of the remaining Dram Shop defendants, established that they were the operators of the taverns involved or that they had the requisite knowledge and were the owners of the premises on which such taverns were operated.

In order for the plaintiff to establish a prima facie case against these defendants, she was only required to show that intoxicating liquor was served at the respective taverns to the person injuring the plaintiff; that such person became intoxicated; that the liquor so served contributed to his intoxication and that the plaintiff's injury resulted from the intoxication. Taken in the light most favorable to the plaintiff, the evidence presented at the trial established such a prima facie case.

Defendants argue that the evidence establishes that the plaintiff was, as a matter of law, guilty of complicity in that she participated in the bringing about of the intoxication of James Hopkins, and that, under the ruling case law, she cannot recover. In support of this contention they cite Meier v. Pocius, 17 Ill. App.2d 332, 150 N.E.2d 215; Phenicie v. Service Liquor Store, Inc., 23 Ill. App.2d 492, 163 N.E.2d 220; ...


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