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Mcdonald v. Risch

DECEMBER 28, 1967.

JOHN MCDONALD, A MINOR, BY ELLIS L. MCDONALD, HIS BROTHER AND NEXT FRIEND, PLAINTIFF-RESPONDENT,

v.

CHARLES S. RISCH, DEFENDANT-RESPONDENT. JOHN MCDONALD, A MINOR, BY ELLIS L. MCDONALD, HIS BROTHER AND NEXT FRIEND, PLAINTIFF-RESPONDENT,

v.

PARK KNIGHT'S CLUB, INC., A CORPORATION, DEFENDANT-PETITIONER.



Appeal from the Circuit Court of the Seventeenth Judicial Circuit of Winnebago County; the Hon. FRED J. KULBERG, Judge, presiding. Affirmed.

MR. JUSTICE MARVIN BURT DELIVERED THE OPINION OF THE COURT.

John McDonald, a minor aged 19, brought this suit by Ellis McDonald, his brother and next friend, against Charles Risch for personal injuries claimed to have been caused by defendant's negligence in the operation of his automobile. In a separate count in the same complaint plaintiff also joined the Park Knight's Club, Inc. charging that plaintiff was injured by Charles Risch while Risch was intoxicated as a result of the sale or gift of intoxicating liquor by Park Knight's Club.

A jury found in favor of both defendants and judgment was entered accordingly.

The court set aside the judgment in favor of Park Knight's Club on hearing the plaintiff's post-trial motion and ordered a new trial as to that defendant only. Leave was granted to said defendant to appeal.

Defendant contends the court abused its discretion in granting a new trial because the record is free from error, or if error was committed it was harmless and not prejudicial to plaintiff and for the further reason that if error was committed, it was not occasioned by, nor attributable to that defendant.

Plaintiff, however, contends that the court committed error in refusing to admit into evidence certain written interrogatories submitted to defendant Park Knight's Club and its answers thereto relative to the serving of intoxicating liquor to Charles Risch at the club.

Plaintiff's evidence established that he was struck by a car driven by the defendant Charles Risch on North Second Street in Rockford, Illinois, on August 8, 1964; that shortly before the accident Risch had consumed a quantity of liquor in a tavern operated by defendant Park Knight's Club, Inc.; that plaintiff sustained serious bodily injury as a result of the accident. This evidence is not in dispute and was not seriously contested at trial.

In this appeal we are not concerned with the circumstances of the accident, but only with the propriety of the setting aside the judgment in favor of the defendant Park Knight's Club, Inc., based upon the sale of intoxicating liquor to Risch.

Plaintiff offered three witnesses on the issues of gift or sale of intoxicating liquor and intoxication. Under section 60 examination (Ill Rev Stats 1963, c 110), Risch testified that he went to the Park Knight's Club at 8 p.m. on the night of the accident accompanied by Patricia Seif and that between that time and shortly before 10 p.m., he had four 12-ounce bottles of beer. He denied feeling the effects of the liquor.

Wilson Lowery, the bar manager of Park Knight's Club, testified in behalf of the plaintiff. He said that Risch came into the club around 4 p.m. on August 8, 1964. Between that time and 6 p.m., Lowery served Risch two 12-ounce bottles of beer and one gin and squirt. Lowery left at 6 p.m. while Risch was still at the club. He did not return that evening. Risch categorically denied being in Park Knight's Club between the hours of 4 p.m. and 6 p.m., and denied drinking two bottles of beer and one mixed drink during that time at the club.

Joe Powers, a part-time bartender at the Park Knight's Club, also testified in behalf of plaintiff. He said that he came in to help Bill Farnan, another bartender, at about 9 p.m. on the date of the accident. In Powers' opinion, based on his observation of Risch at that time, the latter was intoxicated. After Powers and Farnan conferred on Risch's condition, Farnan asked Risch to leave. Risch was angry and left shortly thereafter. Powers served him a glass of 7-Up before he departed. He left without causing any disturbance and walked out all right.

Risch returned to the bar around 12 midnight and argued with Powers about whether he had been refused service earlier. In Powers' opinion Risch was no longer intoxicated at that time.

Deputy Bailey testified in behalf of defendants that he talked with Risch at the accident scene, but did not smell any beer or liquor on his breath. He said that if he had believed from Risch's appearance that he was intoxicated, he would have ordered a blood test. No such test was made.

Plaintiff offered in evidence, pursuant to an oral stipulation with counsel for Park Knight's Club, answers to written interrogatories propounded by the plaintiff. The answers were signed by Robert L. Ellison, attorney for the Club. They contained admissions of a sale of 5 or 6 bottles of beer and one mixed drink ...


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