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Kitten v. Stodden

NOVEMBER 10, 1966.

MACK KITTEN, PLAINTIFF-APPELLANT,

v.

ALBERT J. STODDEN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Effingham County; the Hon. RAYMOND O. HORN, Judge, presiding. Judgment adverse to plaintiff reversed.

EBERSPACHER, J.

This suit was filed to recover damages for personal injuries suffered by Mack Kitten occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, Albert J. Stodden, in driving his automobile. The jury rendered a verdict for the defendant upon which the trial court entered the judgment from which this appeal is taken.

The plaintiff appellant contends that the trial court committed four prejudicial errors as follows: (1) The court's voir dire examination was inadvertently prejudicial; (2) The court erred in the admission of certain evidence; (3) The court erred in the giving of an improper instruction; (4) The court erred in refusing a proper instruction. Plaintiff also contends that the verdict of the jury was contrary to the manifest weight of the evidence.

The facts of the case are as follows: At approximately 2:00 in the morning on August 18, 1963, at a point about five miles north of Effingham on U.S. Route 45, vehicles driven by the plaintiff and defendant collided. Before the collision, the plaintiff was driving south and the defendant was going north. The collision occurred on the north slope of the Green Creek hill while the plaintiff was going downhill and the defendant was going up the hill. There were no witnesses other than the parties, each of whom was alone in his car. The plaintiff's car continued down the hill, struck a bridge abutment and came to rest upside down off the highway in Green Creek, east of the highway. The car was demolished, and the plaintiff was thrown out of the car and seriously injured. The defendant's car continued toward the top of the hill and came to rest, west of the highway, on the shoulder. It, too, was extensively damaged. The defendant was not injured and he left the scene of the occurrence and went home. Because the plaintiff's car was knocked off the road, it was not discovered for several hours. Plaintiff finally was able to crawl out of the creek and up the hill to the road. A motorist stopped and took him to the hospital almost two hours after the collision.

During the voir dire examination, the court stated in effect that there had been statements made with reference to both parties having consumed alcoholic beverages, and remarked that "two drunks are still entitled to the same law as persons who are not intoxicated." This remark was made on the voir dire examination of a Mr. Bierman who was then on the first seat of the third panel of four. Eight of the jurors had already been selected and seated. In Hickey v. Chicago Transit Authority, 52 Ill. App.2d 132, 201 N.E.2d 742, the court made the following remark regarding statements made by the trial court, "The court should be conscious of the fact that he is the dominant figure in the courtroom in any proceeding and that his inadvertent comment on the evidence or attitude of belief or disbelief can well prejudice the jury." In the instant case, the pleadings were void of any reference to either drinking or intoxication.

In the opening statements there undoubtedly were references made to the fact that the parties had been drinking. The drinking of an alcoholic beverage does not of itself raise the question of intoxication. This must be proved by the evidence and testimony of witnesses. As the court said in Shore v. Turman, 63 Ill. App.2d 315, 210 N.E.2d 232:

"Drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated."

To this we would add that neither does drinking, nor evidence of drinking on one occasion, from which intoxication might reasonably be inferred, characterize a person, in either fact or law, as "a drunk."

Plaintiff's testimony was to the effect that in the approximate four-hour period preceding the accident while visiting with friends and dancing he had consumed beer and a small bottle of champagne; and that he was sober. Two witnesses who saw him at the last place he and his girl friend visited, and at which they each drank a small bottle of champagne, testified that they had been personally acquainted with plaintiff, observed him both at that time and place, and previously in the evening, and that when they last saw him he was sober. According to the evidence, that would have been less than an hour before the accident. His girl friend, whom plaintiff had left approximately 10 minutes before the accident, testified that he was sober. No witness testified that plaintiff was intoxicated at any time during the evening preceding the accident; all witnesses who had an opportunity to know were of the opinion that the plaintiff was sober.

Over plaintiff's objection, defendant's instruction No. 14, IPI No. 12.01 was given. It is as follows:

"Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person."

Intoxicating beverages affect different persons in different ways and some persons would be intoxicated by the consumption of the same quantity of intoxicating beverages that the plaintiff consumed, but the consumption of a similar amount by other persons would have no effect. Thus, no court has ever turned to an arithmetic solution to this problem. Rather, the courts have uniformly required the proof of facts which would tend to show intoxication, rather than the mere consumption of intoxicating beverages.

In Shore v. Turman, supra, the same instruction, as was here given, was given. There, too, the plaintiff admitted drinking but denied he was intoxicated, and his witnesses testified he was sober, while no witnesses testified he was intoxicated. There the error of this instruction's being given was coupled with the giving of IPI 150.15, defining intoxication. However, a careful reading of that case leaves no doubt in our mind that the court in that case considered the giving of IPI 12.01 as reversible error. We consider the language of the last paragraph commencing on page 322 (63 Ill App.2d) and on page 235 (210 N.E.2d) as appropriate in this case, but due to its length do not quote it here. There was no counterclaim in this case, and even though there was also evidence of defendant's use of intoxicating liquor preceding the accident, as well as the opinion of a state trooper, that two hours after the accident defendant was intoxicated, the instruction was unmistakenly aimed solely at plaintiff. The instruction was prejudicial and the giving of it was reversible error.

Although the foregoing errors require a reversal and remandment for the benefit of a new trial, we feel compelled to rule on ...


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