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Baker v. Sauber

AUGUST 13, 1965.

RICHARD R. BAKER, FOR THE USE OF MYRTLE ANN BAKER, ET AL., INDIVIDUALLY, PLAINTIFFS-APPELLEES,

v.

FRANCIS SAUBER, D/B/A FRITZ'S CORNER TAP, DEFENDANT-APPELLEE. RICHARD R. BAKER, FOR THE USE OF MYRTLE ANN BAKER, ET AL., INDIVIDUALLY, PLAINTIFFS-APPELLEES,

v.

GUS G. PETROS AND PETER G. PETROS, D/B/A TWIN'S TAVERN, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court for the Sixteenth Judicial District, DeKalb County; the Hon. CASSIUS POUST, Judge, presiding. Judgment affirmed.

ATTEN, J.

Rehearing denied September 14, 1965.

This is a dramshop action brought under Chapter 43, Section 135, of Illinois Revised Statutes. The Plaintiff, Richard Baker, brought the suit against two dramshops to recover damages for loss of means of support to his wife and three minor children. From a judgment entered on the verdict against both dramshops in the sum of $20,000, and the order denying defendants post-trial motions, this appeal is prosecuted by one of the dramshops.

On September 13, 1963, plaintiff, Richard Baker, age 31, was a resident of DeKalb, Illinois and was employed as a truck driver for the Johnson Ready-Mix Company of said city where his average yearly earnings were between six and seven thousand dollars. He was living with, and supporting out of his earnings, his wife and three minor children. September 13, 1963 was a Friday and plaintiff received his pay check, left work at 4:00 p.m. and proceeded to Fritz's Tap at 5th and Lincoln Highway in the city of DeKalb, to cash his check. Plaintiff entered Fritz's Tap between 4:15 and 4:30 o'clock p.m. where he met a co-employee, Raymond Slinkard. Messrs. Baker and Slinkard each proceeded to consume four to seven bottles of beer followed by four to six martinis over a period of two or three hours, whereupon they left Fritz's Tap and went to the Twin's Tavern, approximately a block and one-half away, in plaintiff's pickup truck which he drove. They left Fritz's Tap between 6:30 and 7:00 p.m. Upon entering the Twin's Tap, they walked up to the bar and each ordered a seven-ounce bottle of beer which was served them. Their main purpose in going to the Twin's Tavern was to see Ray Slinkard's brother. Within a half-hour after arriving, they left the Twin's Tavern and plaintiff drove his pickup truck to a gas station a block and one-half away, bought a dollar's worth of gas and drove west on Lincoln Highway where he collided with another vehicle at about 8:00 p.m. or shortly thereafter.

As a result of the collision, plaintiff sustained permanent injury to his spinal cord, partially paralyzing him from the waist down so that he is not expected to walk again without assistance. He has been unemployed since the accident.

While at Fritz's Tap, plaintiff testified he drank six to seven large bottles of beer followed by four to six martinis. Raymond Slinkard testified he and Richard Baker had five bottles of beer followed by four or five martinis at Fritz's Tap. He thought they had the smaller bottles of beer. Francis Sauber, the proprietor of Fritz's Tap, testified that each man had four seven-ounce bottles of beer and four martinis at his tavern.

At the Twin's Tavern, and on direct examination, plaintiff testified he drank over three-fourths of the seven-ounce bottle of beer served him there. On cross-examination, he testified that he could have made a different statement as to how much he had, on some other occasion, and that when his deposition was previously taken, he testified he had a swig or two of that beer. Still later, on cross-examination, he testified he had two or three swigs out of that bottle.

Raymond Slinkard testified on direct examination that while at the Twin's Tavern:

"Q. Did you see Baker drink any of his beer?

"A. Well, I'm not positive, but we poured — we was poured a drink and poured it out in a glass and had a drink together.

"Q. Do you know whether or not Baker drank all of the bottle of beer that was served to him?

"A. No, I'm not positive, but I drank all of mine."

On cross-examination, Mr. Slinkard testified that he gave an investigator a statement on July 17, 1964, and after having read it, testified: "A. Well, I said I could not say if he drank any of it or not there," and admitted it was possible he could have made that statement. When asked as to the truth of that statement at the time he made it, he said, "I don't know."

Gus G. Petros, one of the proprietors of the Twin's Tavern, testified that he removed Mr. Baker's beer from the bar before he had consumed any of it. Joseph DeBair, the bartender in the Twin's Tavern, who served the two bottles of beer to Messrs. Baker and Slinkard, testified no glasses were served with the beers, and that one or both of the bottles was removed from the bar by Gus Petros without any beer having been consumed from either of them. On ...


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