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Grant v. Paluch

JULY 21, 1965.




Appeal from the Circuit Court of Cook County; the Hon. JOHN GUTKNECHT, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. This appeal is taken on behalf of plaintiff, Raymond Grant, for and on behalf of Ruth Grant, his wife, individually, and Ruth Grant as mother and next friend of his minor children, Michael Joseph Grant and William Thomas Grant. The case was heard before a judge and jury in the Circuit Court; the jury returned a verdict for the defendants and the court overruled the post-trial motion and entered judgment in accordance with the verdict.

The action was brought by the plaintiff under Chapter 43, Section 135 of Illinois Revised Statutes (1963), known as the Dram Shop Act, to recover damages on behalf of his wife and minor children. In the complaint it was alleged that Raymond Grant, who will hereafter be referred to as the plaintiff, had become intoxicated as a result of alcoholic liquors sold or given to him by the defendants and consumed at their respective places of business. The plaintiff further alleged that by reason of the consumption of the intoxicating liquors he became intoxicated in whole or in part, and that while in that condition he drove his automobile, collided with another automobile, and suffered permanent injuries. It is alleged that because of such injuries he was unable to return to work at his place of employment and his wife and children were injured in their means of support. In this court the plaintiff objects to certain rulings in the trial court which he alleged prevented him from receiving a fair trial: 1) the trial court erred in refusing an instruction to the jury which would define intoxication (the instruction in question was IPI-150.15); 2) the trial court erred in refusing to allow Robert Stevens to testify as a rebuttal witness; 3) the trial court erred in entering an order on motion of defendants to exclude witnesses which excluded the wife of the plaintiff who, it is alleged, is the real party in interest and beneficial plaintiff in this suit; and 4) the trial court erred in rejecting evidence offered by the plaintiff and in admitting evidence offered by the defendant.

In order to understand the errors urged by the plaintiff it is necessary to consider briefly the plaintiff's evidence appearing in the record. Prior to the accident the plaintiff had worked for a number of years as a foreman at Howard Parlor Furniture Company. Lefty's Lounge, which was owned and run by the Paluchs, defendants, was a tavern across the street from plaintiff's place of employment. The plaintiff went there almost every night after work to wait for a fellow worker to drive him to the train station. The plaintiff testified that on May 10, 1960, the occurrence date, he left work at the usual hour of 4:30 p.m. and went to Lefty's where he met a co-worker, Joseph Bonk. Plaintiff and Bonk stayed at Lefty's for approximately 30 minutes, during which time they each drank three 12-ounce bottles of Hamm's beer. Plaintiff testified that after they finished the first bottle of beer Bonk went to the washroom and that the bartender then gave plaintiff a glass of whisky which he drank quickly so that he could return the glass before Bonk came back. He left after 5:00 p.m. with Bonk and Robert Stevens.

Joseph Bonk testified that he and Grant had entered Lefty's Lounge at approximately 4:25 p.m.; that later Stevens came to the tavern and drove Bonk and Grant to the train station.

The bartender, Frank Rezutka, testified that on May 10 the plaintiff, who was a regular patron, came into the tavern at about 4:15 p.m., or 15 minutes earlier than usual; that he served the plaintiff two bottles of beer; that plaintiff left at about 4:35 p.m., and that neither Bonk nor Stevens was in the Lounge at that time or at any other time that day while plaintiff was there.

The plaintiff said he arrived home at about 7:00 p.m. and had supper. His wife testified that he was in a very happy and jolly mood. The court restricted her examination with reference to the husband's normal attitude towards her. She was asked to describe his attitude towards her that night when he came in at 7 o'clock. She answered that "he was in a very jolly and happy mood, not his usual self, I believe." The latter portion of this answer was stricken.

At about 7:30 Bonk called the plaintiff on the telephone, requesting him to come and look at a sofa which was to be reupholstered. The plaintiff left for Bonk's home over the protestations of his wife. After he left home he stopped at Ed's Tavern, owned and operated by four of the defendants, where he bought two quarts of Drewy's beer. The plaintiff and Bonk both testified that he took the beer to Bonk's home and that they both drank some of the beer in the garage. Bonk stated that each of them drank about six ounces of the beer, and the plaintiff testified that between the two of them they had finished the first bottle and started on the second. Both men then went back to Ed's Tavern, each driving his own car. At the tavern each of them had a glass of draft beer. The plaintiff testified that Bonk went over to the end of the bar to talk to some friends and that in his absence he, the plaintiff, got a drink of whiskey from the bartender which he drank. Plaintiff then left, saying that he intended to pick up some milk for his children.

Nicholas G. Parise, one of the owners and the licensee of Ed's Tavern, testified that he knew both the plaintiff and Bonk and that Bonk was a good customer. He further testified that he saw the plaintiff in the tavern on the night in question; that the plaintiff did not purchase anything; that later in the evening plaintiff came into the tavern with Bonk, when each of the men had a glass of beer; and that plaintiff took one sip from his glass and left.

Shortly after leaving Ed's Tavern the plaintiff was involved in an automobile accident with a car driven by Peter Johnson in which Mrs. Johnson was a passenger. The plaintiff was injured and was taken to the emergency room at Hinsdale Hospital. The attending physician testified that he noticed an odor of alcohol about him. Mrs. Grant came to the hospital about 11:30 or 11:45 p.m., and she also noticed the smell of alcoholic beverages on her husband's breath.

The first objection urged by the plaintiff in this court is that the trial court failed to give a requested instruction. Prior to instructing the jury a conference was held by the court out of the presence of the jury. The plaintiff requested that the court give the following instruction:

IPI-150.15. "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 ability to think and act with ordinary care."

The defendants objected to the giving of this instruction and the court refused to give it.

The statute gives a right of action to any person injured in person or property by any intoxicated person against the sellers or donors of such liquor, et al., and it further provides for a loss caused by injuries to means of support "caused by an intoxicated person, or in consequence of the intoxication." The entire basis of the lawsuit is "intoxication," although the statute does not define that word. It is common knowledge that there are varied effects of alcoholic liquors upon persons. A very small amount of alcoholic liquor may have a startling effect upon one person, while an extraordinary amount may have very little effect upon another. Nor can it be said that the results upon different persons are always the same. The effect may be different because of the physical condition of the person in question, his consumption of food prior to or after his ingestion of alcoholic liquor, and various other questions. Professor Appleman, in the 1964-65 Supplement of Illinois Dramshop Briefs, on page 11, states that a definition of intoxication must be given by the court to the jury or the jury would otherwise be compelled to determine matters of law.

Whether or not a person is intoxicated is a question of fact for the jury but what constitutes intoxication is a question of law to be defined by the court. People v. Schneider, 362 Ill. 478, 200 N.E. 321. In Navarro v. ...

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