Appeal from the Circuit Court of Cook County; the Hon. PAUL W.
CEASAR, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Plaintiff's cause of action against Bill McMillan, a co-defendant, was based on a battery committed by Bill McMillan against him. Plaintiff's claim against the defendant was by reason of Bill McMillan's intoxicated condition which was allegedly brought on either in whole or in part by the sale or gift of alcoholic beverages by the defendant to Bill McMillan. (Illinois Dram Shop Act, Ill Rev Stats 1965, c 43, § 135.) The jury returned a verdict in favor of the plaintiff and against the defendant, Bill McMillan, in the sum of $6,750 and also returned a verdict of not guilty in favor of the defendant Irving Davis Company (hereinafter referred to as the defendant).
Plaintiff appeals from an order denying his motion for a directed verdict against defendant and from the order denying his motion for judgment in his favor notwithstanding the verdict of the jury. On appeal, plaintiff also urges that the trial court improperly instructed the jury by refusing to give his instruction No. 20.
Testimony of Fred Maynard, the plaintiff:
On Sunday, May 22, 1966, he went to Santa Fe Park to watch stock car races. As he was watching the races, he had a conversation with a girl and asked her if she wanted a beer. He bought her a beer and they sat down at a nearby table. The beer was in a milk shake size dixie cup. They sat at this table for ten or fifteen minutes. Bill McMillan's name was never mentioned during the conversation. He had seen McMillan race before but he did not know him personally.
When he first saw McMillan, the girl was still sitting next to him. McMillan walked over to them along with two other fellows. He observed that McMillan had bloodshot eyes and was pale. The girl introduced him to McMillan. McMillan's conversation with him was not friendly. The girl remained seated next to him.
McMillan left after this first conversation and walked over to the beer stand and bought a beer. He saw McMillan drink it. He was still talking to the girl while McMillan drank his beer. After McMillan finished his beer he again walked over to the table and said a couple of words to the girl. He did not remember what was said. McMillan left and bought another beer.
After finishing the second beer, McMillan and the other two fellows came back over to him. As McMillan approached him this third time, he noticed that McMillan "looked real mad and he was sort of weaving when he walked." The girl was sitting next to him. McMillan said, "You better get out of here, fellow," and then hit him in the face. His nose and face were bleeding. He saw McMillan hit the girl in the face with his fist before he went to the washroom to clean up. After he cleaned up, he immediately left the racetrack. In his opinion McMillan was intoxicated the first time he saw him.
He then described his injuries and doctor's fees.
On cross-examination he testified that McMillan "had gotten pushed out of the race and he was really mad." Another driver had forced him out in some illegal manner. He had seen this happen. The girl also told him that McMillan had been forced out of the race.
Testimony of Carl Werner, called by the plaintiff:
He was employed as a bartender by the defendant during May 1966. On May 22, 1966, he did not see any altercation between plaintiff and defendant. He knew Bill McMillan but not personally. He did not know the plaintiff well enough to talk to him. If he was tending bar on May 22 at Santa Fe Park, he probably sold McMillan some beer.
He did not have a clear memory of May 22, 1966. He could not remember what day in the week May 22, 1966 was, nor could he specifically remember selling Bill McMillan any beer ...