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Dembinski v. F. & T. Corp.

APRIL 27, 1970.

EDWARD J. DEMBINSKI, PLAINTIFF-APPELLANT,

v.

F. & T. CORPORATION, A CORPORATION, HENRY NOWAK, TRUSTEE UNDER TRUST AGREEMENT NO. 1180, HENRY NOWAK, INDIVIDUALLY, HENRY F. NOWAK, AND JOHN TRUTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a dramshop action for personal injuries inflicted by an alleged intoxicated person, whose intoxication, plaintiff contends, was caused in whole or in part by alcoholic liquor sold by defendants. Plaintiff appeals from a jury verdict and judgment in favor of defendants.

On appeal plaintiff contends prejudicial trial errors were committed in that (1) the trial court erroneously admitted prior statements of the intoxicated person as impeachment testimony and so instructed the jury; (2) the defendants tendered a police report in the presence of the jury, which was rejected by the trial court; and (3) improper comment by defense counsel was made in his closing argument.

The assailant, Stefan Nicpon, testified for plaintiff. The record indicates that he had a limited use and knowledge of the English language and at times had some difficulty in understanding questions. During his cross-examination it was suggested that he might understand better "if we had a Polish interpreter." The court directed that the questions be given slowly and that he be given an opportunity to answer.

Nicpon's testimony showed that on July 8, 1966, he drank about four or five glasses, or more, of half wine and half water in his home. About 9:00 p.m., he went to defendants' restaurant, known as Nowak's, where he had a sandwich and purchased and drank at least two beers and two or three shots of cognac. He remained in the restaurant for about a half hour. When Nicpon left the restaurant he felt tired and wanted to go home. He stated, "It was a very hot day, and I am drunk." He walked for five minutes because "I feel, you know, tired and I didn't feel so good because I was drunk. I was looking for some place to sleep." He arrived at a small triangular park where plaintiff Dembinski, Vincent Swiderski, and one Noga, since deceased, were sitting on a park bench. They were all acquaintances of Nicpon. He approached them and attempted to strike up a conversation with plaintiff. Plaintiff told him, "If you want to talk to me I talk to you later." After a brief exchange of words, plaintiff shoved Nicpon and started to strike and kick him. Nicpon said, "then he lift his legs and push me in my belt and starts to kick me . . . from the sidewalk. . . . I start, you know, defense myself. I pull out the knife and stab him with the knife." After the stabbing, Nicpon ran to a fire station approximately one block away and told the fireman to close the door because three men were chasing him. The witnesses who observed Nicpon running testified that he ran straight and did not fall down.

On cross-examination Nicpon testified that he had been plaintiff's neighbor and had known him for some time. He stated that if he had not been drunk, he never would have stabbed plaintiff. Also, when he was questioned about a statement taken from him by defendants' representatives at his home on October 30, 1967, the following took place:

Q. "Did you tell them that you did not feel drunk at the time of this incident?"

A. "I don't remember. I could not tell him that because I was."

A. "Then I was looking, you know, because I didn't feel that drunk that I am tipping."

Q. "You didn't feel drunk at all then?"

A. "It seems to me, but I was so tired, you know."

Q. "Were those questions asked of you and were those your answers?"

A. "Maybe they didn't understand me good."

Q. "It could be that you said ...


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