Appeal from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding. Reversed in part, affirmed in
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment entered by the Circuit Court of Cook County on May 5, 1966, pursuant to the Dram Shop Act (Ill Rev Stats 1963, c 43, § 135), ordering that the plaintiffs, Jack Shiflett and his wife, Fay Shiflett, have and recover from the defendants, Clifford Madison, doing business as Cliff's Lounge; Joseph Armenali; Ann Armenali; Anthony J. Zini; and Marjorie Zini, the sums of $15,000 and $8,000 respectively.
Plaintiff Jack Shiflett, individually, and for the use of his wife, Fay Shiflett, filed his complaint at law and amendments thereto, alleging that the defendant, Clifford Madison, was the owner and operator of a liquor tavern known as Cliff's Lounge; that defendants Joseph Armenali, Ann Armenali, Anthony J. Zini and Marjorie Zini, owned, possessed and controlled the building where the aforementioned tavern is located, and that they leased the premises to Clifford Madison, knowing full well that he intended to use the premises for the selling of alcoholic liquor therein; that on October 4, 1963, Clifford Madison sold intoxicating liquor to one Johnny Lee Morris, causing him to be become intoxicated; that as a direct and proximate result and in consequence of said intoxication, Johnny Lee Morris, wilfully and without provocation, assaulted Jack Shiflett, causing him great bodily harm consisting of both outward lacerations and internal injuries; that therefore, by force of the Illinois Dram Shop Act, the plaintiff, Jack Shiflett, is entitled to recover damages from the defendants in the sum of $15,000, and that Fay Shiflett, his lawful wife, is entitled to recover damages from the defendants in the sum of $20,000 for the loss of her income and means of support resulting from her husband's injuries.
In response the defendants filed their answer in which they denied their liability under the Dram Shop Act for the injuries inflicted upon Jack Shiflett by Johnny Lee Morris, and further alleged that the plaintiffs are not entitled to recover damages in the amounts prayed for.
On April 28, a trial was held before the court, and the following evidence was presented. On October 4, 1963, the plaintiffs, together with several friends, were patrons at Cliff's Lounge, located at 4612 North Clark Street, in Chicago. There was an altercation between Jack Shiflett and Johnny Lee Morris, resulting in Jack Shiflett's being injured. The plaintiffs instituted suit against the named defendants under the Illinois Dram Shop Act, and also against Johnny Lee Morris. During the trial, however, Morris was dismissed as a party defendant.
At trial, the defendants set out that Jack Shiflett had provoked the altercation, but the jury decided the issue in favor of the plaintiff, and found that Jack Shiflett had in fact been assaulted without provocation. As a result, Shiflett claimed that he was injured extensively and is now unable to perform his ordinary occupation; that as a consequence he has lost substantial income and incurred considerable medical expenses. He testified that he was employed by the Anchor Metal Finishing Company during 1960 and 1961, earning $3,900 and $4,800, respectively, during that time, but that during 1962 he was unemployed. He testified that in 1963 he had worked for four months as a painter for Roberts Painting and Decorating at a weekly salary of $100, but that he had never been fully paid for his labor; that he had worked a few days for a plumbing and heating company; that for four or five weeks prior to the injury he had been employed as a carpenter's helper at Landy Feldman Construction Company at a weekly salary of $100, and in addition had earned from $10 to $15 a week working part time in Cliff's Lounge. In his 1963 income tax report, however, the plaintiff did not report any income from Landy Feldman Construction Company, nor did he mention in his answers to interrogatories that he had ever been employed as a carpenter's helper.
Jack Shiflett further testified that during his working periods he turned over his salary to his wife and thereby contributed to her support, but that during most of the year 1962-63 his wife was the sole support of the family.
At one point in the trial, counsel for the defendants tried to introduce evidence in an attempt to show the type of automobile owned by plaintiffs a 1966 Chevrolet Impala. The trial judge, however, ruled that such evidence was not admissible and excluded it. After the evidence had been presented the trial court instructed the jury, over defendants' objection, as follows:
If you decide for the plaintiff, Jack Shiflett on the question of liability as to the defendants, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have been caused by the intoxicated person:
The nature, extent and duration of the injury.
The disability and disfigurement resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The reasonable expense of necessary medical care, treatment, and ...