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Walls v. Jul

DECEMBER 23, 1969.




Appeal from the Circuit Court of Lee County; the Hon. JAMES E. BALES, Judge, presiding. Judgment affirmed.


This is an appeal from the judgment of the Circuit Court of Lee County awarding $15,000 property damages under the Dram Shop Act (Ill Rev Stats 1965, c 43, § 135) to plaintiffs, Eugene R. Walls, Sr. and Connie Walls, parents of Eugene R. Walls, Jr., who was severely injured in an automobile accident after allegedly consuming vodka purchased at the Rainbow Inn in Dixon. The action was brought against John Jul, owner of the tavern and liquor store known as the Rainbow Inn, his employee, Verna Crowder Powers, and the property owner, Carl Petersen.

The issues raised in appellant's brief are (1) whether plaintiffs established the fact of intoxication, (2) whether the trial court ruled correctly on certain objections to evidence, (3) whether the jury was improperly instructed, and whether the court erred in failing to grant to defendants relief in light of plaintiffs' inadequate compliance with the court's order for production of documents, (4) whether the court erred in giving instructions on negligence in a dramshop suit, (5) whether plaintiffs' attorney made prejudicial remarks in his closing statement to the jury, and (6) whether plaintiffs failed to prove a proposition in their instruction.

Testimony at the trial adduced the following recital of events. On August 17, 1966, Eugene Walls, Jr., a minor, was employed at the Dixon State Hospital. About 1:30 p.m. that day, three other boys employed at the school (all minors) and Walls cashed their pay checks at one grocery store, went to a gas station, and then to the Rainbow Inn where Walls, Jr. purchased a fifth of vodka at the drive-in window from Verna Powers. They were not questioned about the purchase. They picked up a six-pack of 7-Up at another grocery store and then drove a short distance to a gravel road, where they stopped. Earlier that day, the boys had been drinking beer and Walls, Jr. drank one can of beer on the way to the gas station. While the car was parked on the gravel road, each boy drank part of the contents of each 7-Up bottle and then filled it with vodka and drank it. There were varying accounts of the quantity of vodka consumed by each boy. After the drinks were consumed, they drove a short distance and Walls, Jr. took the wheel, and turned into Route 26. The accident occurred about one-half mile from the second stop. They passed a truck as they went around a curve on Route 26; the car went off the pavement on the right, swerved back and went off to the left. Walls, Jr. lost control of the car and hit a culvert.

A Mr. Hoag testified that he was driving a pickup truck about 30 miles per hour north on Route 26 about 2:23 p.m. on August 17, 1966, when an automobile passed him, went on the right shoulder of the road, skidded as it returned to the pavement, and looked like it would tip over. He said he didn't notice that the car traveled with any excessive speed. He had passed the scene of the accident, thinking it was "a pile of junk," when he saw smoke coming from the wreckage.

A State Trooper, J.O. Buckley, in his testimony, said he was called to the scene of the accident and found the burned out wreckage of an automobile and learned that the occupants had been removed to the hospital. He found an uncapped bottle of vodka, partially filled, lying four or five feet from the wreckage. Officer Buckley made a freehand sketch of the area showing the skid marks and physical characteristics of the scene. He searched the area but found nothing but the vodka bottle. The accident occurred at 2:25 p.m. and Officer Buckley arrived at the scene about 2:44 p.m. At the hospital the next day he talked with the survivors, Walls, Jr., Hernandez and Ramos. Walls, Jr. could remember nothing, and the other two boys stated that all four had been drinking.

Dr. Howard M. Edwards, the physician who attended Walls, Jr., stated that the boy had been operated on three times, that both legs were amputated above the knees. The doctor stated that, in his opinion, Walls would continue to require medical treatment and that the artificial limbs he was wearing would have to be replaced.

Mr. Jul, operator of the Rainbow Inn, testified that on the day in question he sold a bottle of vodka to a woman accompanied by three or four boys. He said he recognized the boys because he had refused to sell to them on previous occasions. The woman assured him the purchase was for her own use. Mrs. Powers, the former employee, said she did not sell the vodka to the boys and would not have done so, because they appeared to be minors.

Mr. Eugene Walls, Sr. testified that the total expenditures in connection with the accident amounted to approximately $7,500. He had had further expenses, and anticipated more in the future. Walls, Jr. had not worked at all since the accident and did not pay for any of his own medical expenses.

On plaintiffs' motion, Verna Powers was dismissed from the suit. The court admitted into evidence the bottle of vodka, and over the objections of the attorney for the defendants, also admitted the sketch prepared by Officer Buckley.

The jury returned a verdict in favor of the plaintiffs, Eugene R. Walls, Sr. and Connie Walls, and against the defendants, John Jul, individually, and d/b/a Jul's Rainbow Inn, and Carl Petersen in the sum of $35,000. The court reduced the award to $15,000 in accordance with the provisions of section 14 of Article VI of "An Act Relating to Alcoholic Liquor." Smith-Hurd Annotated Statutes, c 43, § 135. A post-trial motion to set aside the verdict in favor of the plaintiffs and against the defendants and for judgment notwithstanding the verdict was denied. The defendants subsequently appealed to this court.

[1-4] Defendants contend that the plaintiffs failed to establish the essential element that Eugene Walls, Jr. was intoxicated at the time of the accident and that there is no evidence to support a finding that Walls, Jr. was intoxicated. They, therefore, claim that the court erred in failing to direct a verdict and in refusing to enter a judgment n.o.v. Although the evidence hereinbefore set forth in this opinion was not detailed, we must conclude that its totality was sufficient to permit the jury to determine that Walls, Jr. was intoxicated. Morehead v. Rock Tavern, Inc., 89 Ill. App.2d 111, 114, 231 N.E.2d 259. Although there was conflicting testimony on intoxication, under the circumstances present, this was a question of fact to be settled by the jury. The contention that there was no evidence to support a finding that Walls, Jr. was intoxicated and that, therefore, a directed verdict or a judgment n.o.v. should have been entered in favor of the defendants is without merit since there was probative fact to support the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504. Furthermore, the finding of the jury on the question of intoxication is not against the manifest weight of the evidence.

Defendants also contend that the court erred in admitting into evidence part of a State Police report as an exhibit for the plaintiffs stating that police reports are inadmissible, Smith v. Johnson, 2 Ill. App.2d 315, 319, and that since it was in corroboration with a witness's trial testimony, the mere attempt to introduce a police report is reversible error. Johnson v. Plodzien, 31 Ill. App.2d 222, 227, 175 N.E.2d 560.

It will be recalled that State Trooper Buckley made a diagram or sketch which was apparently part of a police report showing certain measurements concerning the accident. Defendants' position appears to be that since the diagram prepared by the officer was a part of a police report, it is per se inadmissible. We do not believe that the diagram made by the officer comes within the prohibition against introduction into evidence of police reports, but was itself admissible as a diagram explanatory in nature, ...

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