Appeal from the Circuit Court of Cook County; the Hon. THOMAS
J. COURTNEY, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from a directed verdict in favor of defendants in a dramshop action. The trial court barred a plaintiff's witness from testifying because his name was not furnished in response to interrogatories. This action by the court deprived plaintiff of evidence that allegedly would establish a sale or gift of intoxicating liquor as required in an action predicated upon the Liquor Control Act also referred to as the Dram Shop Act, Ill Rev Stats, c 43, § 135 (1961). The lack of this evidence is said to have resulted in a directed verdict in favor of defendants from which plaintiff appeals.
On June 9, 1962, plaintiff was allegedly assaulted by defendant Harold McCoy and sustained a fractured jaw that necessitated extensive medical treatment. Defendant dramshops, through their investigator, took a court reporter's statement from Ted Skelton, a friend of McCoy's, on December 10, 1962. Skelton related therein that he was in the company of McCoy on June 9, 1962, that McCoy was not intoxicated, that plaintiff instigated the altercation by attacking McCoy, and that he had no knowledge of McCoy making any purchases from defendant dramshops.
Plaintiff filed his complaint on February 14, 1963, and answered interrogatories on August 22, 1963. An examination of the interrogatories and answers thereto reveals that plaintiff furnished the name of Eugene Griffin, address unknown, as a witness having knowledge of McCoy's liquor purchases and intoxication on the day of the incident. However, Ted Skelton's name was not mentioned. The answer also stated that the matter was still under investigation. On July 24, 1964, defendants took plaintiff's deposition. When he was asked whether he knew of Ted Skelton, he answered in the negative.
On January 26, 1968, plaintiff took a written statement from Ted Skelton wherein his recitals regarding the altercation between plaintiff and McCoy were diametrically opposite to what he had related to defendant's investigator on December 10, 1962. In this later statement he related that he was with McCoy the day of the altercation and McCoy had made purchases of alcoholic liquor from defendant dramshops and while intoxicated, he assaulted and injured plaintiff.
It was established that on or about February 11, 1968, plaintiff had furnished defendants a copy of Skelton's statement of January 26, 1968. The case went to trial on February 21, 1968 and upon defendant's motion the trial court barred Skelton from testifying and subsequently directed a verdict for defendants.
Plaintiff contends that the trial court erred in barring Skelton's testimony because:
(1) The plaintiff had no knowledge of the existence of Skelton at the time of answering the interrogatories or giving the deposition.
(2) The plaintiff had no continuing duty to supplement the answer to interrogatories.
(3) The defendants were not taken by surprise, since they were informed of Skelton's written statement ten days before trial.
The appropriate sanction, if any, to be applied by the trial court for failure to list a witness in response to an interrogatory is within the discretion of the court (Ferraro v. Augustine, 45 Ill. App.2d 295, 196 N.E.2d 16 (1964)).
In Buckler v. Sinclair Refining Co., 68 Ill. App.2d 283, 216 N.E.2d 14 (1966), the court stated that the criteria to be weighed in determining ...