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Frazier v. Burks

APRIL 15, 1968.

BEATRICE FRAZIER, PLAINTIFF-APPELLANT,

v.

DAN BURKS AND CLARENCE CUMMINGS, DEFENDANTS, AND VIRGUS MOSBY, D/B/A MOSLEY'S LOUNGE, AND THEOLA MOSBY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 12, 1968.

In a four-count complaint, plaintiff sought recovery for personal injuries received in an automobile collision, allegedly caused by a drunken driver, defendant Clarence Cummings. Count I was based on the Dram Shop Act (Ill Rev Stats, c 43, ¶ 135) and was directed solely against defendants Mosby, tavern owners. At the close of plaintiff's evidence, the trial court directed a verdict in favor of the Mosbys stating, "The record is totally devoid of any evidence of consumption of the half-pint of whiskey the defendant Mrs. Mosby, testified she sold to the alleged intoxicated person."

Plaintiff appeals on the theory that Cummings was unavailable at the time of the trial, and the trial court improperly refused to admit in evidence, on behalf of plaintiff and against the Mosbys, an alleged written declaration against interest made by Cummings three days after the occurrence. Plaintiff asserts that the "admission of the declaration against interest clearly would have brought before the trial court sufficient evidence to compel this cause to be submitted to a jury."

Plaintiff's evidence shows that on the afternoon of Saturday, June 3, 1961, plaintiff was a passenger in a northbound car on Wentworth Avenue at 48th Place in Chicago, and defendant Cummings was driving his car south on Wentworth. The Cummings' car struck another southbound car in the rear, bounced off it and entered the northbound lane, where it collided head on with plaintiff's car, and plaintiff was injured.

Defendant Burks, the driver of the other southbound car, testified that after the occurrence he noticed that Cummings had bloodshot eyes, was staggering around and had an odor of alcohol.

Defendant Theola Mosby, called as an adverse witness, testified that Cummings was a "regular customer" at the Mosbys' tavern. On the day of the occurrence, at 12:45 p.m., Cummings entered the tavern and purchased a half-pint of Scotch Whiskey and left, and did not return.

Defendant Cummings was not present at the trial, and plaintiff sought to introduce into evidence a written statement made by Cummings. Plaintiff's witness Irving Schaffner testified that he took the statement from Cummings in his home and in the presence of Mrs. Cummings. He had them both read it, and they both signed it in his presence. The court ruled that the statement was not admissible in evidence against the Mosbys. The document was read into the record as part of an offer of proof and includes the following:

"On Saturday, June 3, 1961, about 1:00 p.m. I left my apartment and drove my 1959 Buick Sedan over to Mosley's Lounge located at 4425 South Wells Street. I was alone and after I walked into the tavern I met Isiah Banks, Walter Banks and a fellow named Wolf. We sat down in the first booth from the front door and we ordered a couple of half pints of Ballentine Scotch. We sat there drinking and talking for awhile. A little after 7 P.M. I figured I had plenty to drink and decided to get home. I managed to get into my car and my head was spinning. I vague[ly] remember driving south on Wentworth Avenue, and suddenly there was a car ahead of me. The next thing I remembered was loud crashing noises. Later a policeman told me that I had hit two cars. He asked me if I had been drinking liquor and I told him that I had and where I drank it at.

"I have read the above statements on June 6, 1961 at 7 P.M. in my apartment in the presence of my wife and believe them all to be true.

"By: Clarence Cummings.

"Witness: Mattie Cummings."

Later, another witness for plaintiff, Julian Burkman, testified in detail as to his attempt to serve a subpoena on defendant Cummings during the week previous to the trial, and that he had not been able to find Cummings.

The court again denied plaintiff's motion to admit the statement and stated, "It is the court's judgment, that the statement may be admitted as to the defendant Cummings as an admission against interest. It would be error to admit it generally, and thereby bind the dramshop defendants, Mr. and Mrs. Mosby." The court then sustained the defendants Mosbys' motion for a directed verdict ...


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