Appeal from the Superior Court of Cook County; the Hon. EZRA
J. CLARK, Judge, presiding. Judgment affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal in a Dram Shop action from verdicts against defendants, Pasquale J. Marrocco and Caroline Marrocco, individually, and as co-partners, d/b/a "Pat and Kay's El Marrocco" and Clarence Floring and Frieda Floring, individually, and as co-partners, d/b/a the "Yellow Cottage," in the sum of $15,000 for plaintiff, individually, and for $20,000 to plaintiff, John Quatrano, on behalf of his three minor children for loss of support. The other defendants, Emily T. Magisano and Eric Helfritch, individually, and d/b/a Bensenville Liquor Mart, were found not guilty. This appeal has only been perfected on behalf of defendants, Clarence Floring and Frieda Floring, d/b/a the "Yellow Cottage."
Defendants' theory of the case is: One, that the trial court erred in permitting witnesses, not named in the Answers to Interrogatories, to testify; two, that the trial court erred in giving to the jury, plaintiff's instructions Numbers 12 and 15, over defendants' objection; and three, that the trial court erred in refusing to give to the jury, defendants' instructions Numbers 5, 6, and 7.
On May 18, 1957 plaintiff was twenty-four years old, married, and the father of three children, one to four years of age. He held two full time jobs, one, as a sheet metal worker, earning $6,400 a year, and the other as a policeman for the Village of Northlake, earning $2,100 a year. On May 17, 1957, pursuant to orders from the Police Chief of the Village of Northlake, plaintiff and his partner, Officer McLean entered "Pat and Kay's El Marrocco" dance hall at Lake Avenue and Wolf Road, Northlake, Illinois, to check for minors. Officer McLean returned to the squad car to receive messages via the radio. Plaintiff, meanwhile, stood at the end of the bar in full uniform, looking over the crowd. He felt something grab at his gun. He turned around and saw a "big guy in a tee shirt." Plaintiff's gun discharged and a bullet entered his body at a point beneath his right shoulder, plunged through his right lung and his seventh dorsal vertebra and lodged in the left side of his back. His assailant's name was David Richter.
Richter, testifying for plaintiff, stated that he returned from the Air Force on May 16th, and that on May 17th, at about 2:00 p.m., he and a companion, Michael Martyniuk, went to the "Yellow Cottage" and stayed there until about five o'clock and were served drinks by a "heavy set man." He further stated that he had from ten to fifteen bottles of beer and two or three shots of whiskey; that Martyniuk drove him home; that at about 5:45 p.m., after having a sandwich, Martyniuk picked him up; that they returned to the "Yellow Cottage" where Richter had five more bottles of beer; that on the second visit to the "Yellow Cottage" he saw a friend of his mother's, Mrs. Helen Nelson, and spoke to her; that he left the "Yellow Cottage" with Martyniuk at approximately 8:00 p.m., and picked up Rosetta DiMicelli; that they went to the Bensenville Liquor Mart, where Richter bought five quarts of beer and drank two or three of them; that they drove the girl home and went to "El Marrocco" at about 11:30 p.m., where Richter recognized a friend named Robert Block. Richter testified he spilled one beer at the bar; that he noticed plaintiff standing near him; that plaintiff had on a brown leather belt and a holster which contained a chrome pearl-handled gun; and that he nudged Block saying, "Watch this." He also testified that he pulled the gun out of the holster with the intention of sticking the man in the back saying, "draw" but that when he turned around and got hold of the gun "it went off and fell to the floor." He further testified in answer to the question "Just a minute were you sober or intoxicated at this time?" that he was "intoxicated." Other eyewitnesses verified that Richter was drunk. Martyniuk did not testify, being in California.
Helen Nelson testified for plaintiff and on direct examination stated that she knew David Richter and his parents since he was a little boy; that on the evening of May 17th, she saw Richter at the "Yellow Cottage" in Bensenville, where she had gone about 7:30 p.m. with one Dorothy Nunnelly; that she knew the proprietor; that she saw Richter standing at the end of the bar when she came in, and that he greeted her; that Richter did not remain there very long, perhaps fifteen or twenty minutes and then left saying, "Good bye Mrs. Nelson"; that she was not seated close to Richter nor was she paying any attention to what he was doing; and that he left with another man. She testified on cross-examination that she discussed the shooting with a Mrs. Floring several days later; that she did not recall whether Mrs. Floring was in the tavern that evening; and that she had been subpoenaed to testify one week before the trial.
Mrs. Floring testified that she and her husband owned the "Yellow Cottage" in Bensenville and lived above it; that they had no other help in the operation of the tavern; and that on May 17, 1957, Richter and another young man came to her place, where he greeted Mrs. Nelson at the bar, and talked to her for about fifteen minutes. She denied that she served Richter or his friend any alcoholic beverages but stated that she requested them to leave. She further stated that about an hour later they returned and she told them they could not come in her place and that a few days later, Mrs. Nelson told her about Richter and what had happened at "El Marrocco." She also testified that she could not say whether or not they had been drinking.
After Quatrano was shot, he was taken to Memorial Hospital in Elmhurst, where he was X-rayed. It was discovered that the bullet had gone through the right lung, crushed the seventh thoracic vertebra and lodged in his back. The bullet was removed several months later at which time he was hospitalized for three months. X-rays revealed a deformity of the spine. Plaintiff complained of stiffness and pain between his shoulders. Dr. Gutzmer described the condition as not only permanent but also progressive and recommended a spinal fusion. Dr. Michaels, an orthopedic surgeon, recommended a hypertension body jacket. He also testified that the bullet penetrated one of the vertebrae of the back and stated the condition was permanent and recommended a spinal fusion, which would require hospitalization for anywhere from two to three and a half weeks and the use of a brace or plaster cast for a minimum of seven to nine months in order to solidify the fusion.
The plaintiff returned to work on October 1, 1957 as a sheet metal worker. He testified he was not able to do the work he had done before because his back bothered him and he tired easily. He stated that during the years 1958 and 1959 he experienced difficulty with his back and that during the year 1960, his back bothered him quite a bit.
Sometime after the occurrence a divorce decree was entered on complaint of plaintiff's wife. At the time of the trial, his children, Cynthia, age 11, and Dante, age 8, were living with him and Michael, age 7, was living with his wife, who had remarried. All three children attended parochial schools, for which he paid the tuition, and he also contributed to Michael's support whenever he could.
The first allegation of error raised by defendants is that the trial court allowed witnesses to testify whose names were not listed in the Answer to defendants' Interrogatories. Defendants' position is that they should have been given sufficient advance notice so that they might have been able to take a deposition or statement in order to properly prepare for trial and that absent such notice the trial court should have excluded the witnesses.
Until recently, considerable confusion existed in Illinois regarding the power of a trial court to exclude witnesses whose names were not given in an answer to interrogatories. In the case of Wright v. Royse, 43 Ill. App.2d 267, 193 N.E.2d 340 (1963), an exhaustive analysis of applicable law was undertaken. Subsequently, in the case of Rosales v. Marquez, 55 Ill. App.2d 203, 204 N.E.2d 829 (1965), the court reviewed the principles which had developed and stated on page 206:
Supreme Court rule 19-12(3), Ill Rev Stats, ch 110, sec 101.19-12(3) (1963), and the comparable rule of the Municipal Court of Chicago, rule 2, sec 19-12, relate to pretrial discovery procedures and provide many sanctions for failure to comply with the rules pertaining to discovery. The exclusion of witnesses is not among them. However, Illinois cases have recognized the right of the trial court to refuse to permit a witness to testify. Dempski v. Dempski, 27 Ill.2d 69, 187 N.E.2d 734; Wright v. Royse, 43 Ill. App.2d 267, 193 N.E.2d 340; Battershell v. Bowman Dairy Co., 37 Ill. App.2d 193, 185 N.E.2d 340; Nystrom v. Bub, 36 Ill. App.2d 333, 184 N.E.2d 273; Perez v. Baltimore & O.R. Co., 24 Ill. App.2d 204, 164 N.E.2d 209. Contra: Hansel v. Friemann, 38 Ill. App.2d 259, 187 N.E.2d 97. . . .
In determining whether the exclusion of a witness is the appropriate sanction to impose when his name has not been furnished or his correct address has been withheld, our courts have considered the surprise to the adverse party, the harm that has been done to his case, the nature of the witness' testimony, the timeliness of the objection to his testifying and whether the omission appears to have been intentional or inadvertent. The nonimposition of the sanction has been approved in cases where there was no surprise, or the surprise was minimal, or where the surprise and the harm caused by it were alleviated by giving the adverse party an opportunity to talk to the witness prior to his testifying, or where the witness' testimony was merely cumulative and corrobative. ...