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Weaver v. Lovell

AUGUST 31, 1970.

OPAL WEAVER, ADMINISTRATOR OF THE ESTATE OF LOREN L. WEAVER, DECEASED, PLAINTIFF-APPELLEE,

v.

BERT LOVELL, D/B/A TOWNE TAVERN, DEFENDANT-APPELLANT, AND JOHN E. BOWLES, D/B/A KEN'S TAVERN, DEFENDANT.



Appeal from the Circuit Court of McLean County; the Hon. LELAND SIMPKINS, Judge, presiding. Judgment affirmed.

CRAVEN, P.J., DELIVERED THE OPINION OF THE COURT.

This is a dramshop action brought by Opal Weaver as administrator of the estate of Loren L. Weaver, deceased, for loss of means of support of herself as widow and of the minor children of decedent. Defendants were Bert Lovell, operator of a tavern in Danvers, Illinois, and John E. Bowles, operator of a tavern in Bloomington, Illinois.

A jury trial resulted in a verdict of $40,000 in favor of plaintiff against Bert Lovell and a verdict against plaintiff on her suit as to John E. Bowles. A judgment of $20,000 was entered in favor of plaintiff against Bert Lovell and against plaintiff as to John E. Bowles. Lovell here appeals the judgment entered against him.

Weaver died in an automobile accident which occurred on July 15, 1967, in McLean County, between an automobile driven by Wayne Coyle and one driven by Loren L. Weaver. Plaintiff's action is based upon the theory that Coyle was intoxicated at the time of the collision, that his intoxication was a cause of the collision, and that defendants each sold or gave him intoxicating liquor which caused, in whole or in part, his intoxication.

The automobile accident occurred on Route 22, two miles east of Stanford, Illinois, between the 1960 Chevrolet driven by Coyle and the 1955 Plymouth driven by Weaver. State Police Officer Wayne Hicks testified at the trial that he arrived at the scene of the accident approximately forty-five minutes after the accident occurred and that he observed the then position of the vehicles and the skid marks. He identified certain photographs of the accident scene and located on them an area which he judged to be the point of impact. The photographs, admitted into evidence, showed the damage to the vehicles, where they came to rest following the collision, and some 133 feet of skid marks left by Coyle's car as it crossed the center line of the highway and struck Weaver's car. The trooper expressed his opinion that "In my judgment the 1960 Chevrolet crossed the center line and struck the '55 Plymouth in the westbound lane, I guess."

The evidence shows that at approximately 10:00 a.m. on the day of the accident, Wayne Coyle visited Ken's Tavern in Bloomington, operated by defendant John E. Bowles, where Coyle drank two 12-oz. bottles of beer and remained approximately forty-five minutes. He then drove thirty miles to Congerville, where he visited his brother-in-law, Carol Meyer, from 11:45 or 12:00 noon to 12:20 p.m., and there drank a 12-oz. can of beer. He left his brother-in-law and apparently drove to the Towne Tavern in Danvers which was operated by defendant, Bert Lovell, arriving there between noon and 1:00 p.m. He was in the Towne Tavern approximately one-half hour, where he had one drink consisting of an ounce of Paul Jones 80-proof whisky in a 7-oz. glass, mixed with ice and Coca-Cola. From the Towne Tavern he went to the home of an old friend, Charley Erps, where he remained for approximately a half hour. He then went to a restaurant in Danvers where he had coffee and something to eat. He returned to the Towne Tavern a little after 2:00 p.m., stayed there twenty minutes, and while there drank one highball containing an ounce of Paul Jones 80-proof whiskey, ice and Coca-Cola in a 7-oz. glass. He left the Towne Tavern at 2:30 p.m., which was the last that anyone observed him prior to the automobile accident at about 3:00 p.m.

Coyle was removed from the accident scene to St. Joseph's Hospital prior to 4:00 p.m. Four hours later, a laboratory technician, at the request of a doctor, took a sample of his blood to make a blood-alcohol test. The blood-alcohol test was performed shortly after 9:00 p.m. Over objection, the medical technologist who performed the test testified that the percentage of blood-alcohol shown by this test was .04 percent weight per volume. The hospital records showed that a drug, Arramine, was ordered for Coyle at 4:20 p.m.; that he was given phenobarbital at 4:20 p.m., an intravenous saline solution at 4:35 p.m., and a blood transfusion at 5:45 p.m. The technician who took the blood sample did not recall whether Coyle was conscious or unconscious at the time the sample was taken.

At the trial several lay witnesses who saw and observed Coyle on the day of the accident testified from their observations that he was sober.

Carol Meyer, his brother-in-law, testified that at the time of Coyle's visit at his home from approximately 11:45 a.m. until 12:20 p.m., they conversed with each other and that, based upon his observation, Coyle was perfectly sober. Walter Siebert and Beda Siebert testified that they saw Coyle on his first visit, between noon and 1:00 p.m., at the Towne Tavern, saw him come in and leave and heard him talk to Dorothy DeHart. They observed him for approximately fifteen minutes. They expressed an opinion that he was sober. However, Beda Siebert said she didn't talk to Coyle and she didn't overhear any of his conversation. Dorothy DeHart was ill at the time of trial and did not testify. Charley Erps testified that while Coyle was at his home, he saw Coyle walk and talk, observed his motions, didn't smell liquor or beer on him, and was of the opinion that he was sober. Beverly Neal, a waitress in the restaurant at Danvers where Coyle drank coffee and ate a ham sandwich at about 2:00 p.m., testified she talked with him there and that his appearance, speech and actions were normal at that time. Marilyn Lovell, the wife of Bert Lovell, was on duty in the Towne Tavern on the occasion of both visits of Coyle there. She testified that, in her opinion, Coyle was sober on both occasions.

Dr. John Maloney, a licensed physician and surgeon and the resident pathologist at St. Joseph's Hospital, called by plaintiff, testified that he reviewed the results of the test for blood-alcohol which were .04 percent. Over objection that his testimony was highly speculative, he was permitted to testify that based upon the facts before him of the .04 percent blood-alcohol at 9:00 p.m. and then receiving 500 cc.'s of blood at 5:45 and a saline solution and phenobarbital, he would conclude that the blood-alcohol level in Coyle's bloodstream at 3:00 p.m., six hours prior to taking of the sample, should be .16 percent if maximum absorption had occurred. He stated that he based this conclusion upon the constant that the straight-line rate of .02 percent per hour decrease by oxidation in blood-alcohol would be expected physiologically. He stated that he would tend to ignore the saline and blood transfusions.

Dr. Seymour Goldberg, a physician specializing in internal medicine, practicing in Bloomington, Illinois, called by plaintiff as an expert witness, testified over objection, in answer to a hypothetical question, that a male, 36 years of age, assumed to have consumed two 12-oz. bottles of beer between 10:00 and 11:00 in the morning, an additional or third 12-oz. bottle or can of beer between 11:45 a.m. and 12:15 p.m., a beverage consisting of one ounce of 80-proof whiskey mixed in a 7-oz. glass with ice between 12:00 noon and 1:00 in the afternoon, and another beverage consisting of a shot of 80-proof whiskey mixed in a 7-oz. glass with ice an hour and a half to two hours later, and who was involved in an automobile collision at 3:00 p.m. on that day, would have an impairment of his mental and physical faculties so as to diminish his ability to think and act with ordinary care at 3:00 p.m. that day.

Dr. Goldberg further testified that the degradation rate of alcohol is .02 percent per hour and that assuming a blood-alcohol test of an individual's blood-alcohol level or percentage of alcohol in his bloodstream at 9:00 p.m. was .04 percent, it would have been at least .16 percent at 3:00 p.m., six hours earlier. He then testified that, in his opinion, based upon a reasonable degree of medical certainty, an individual with a percentage of .16 alcohol in his bloodstream would be drunk.

Defendant contends that it was reversible error to permit Dr. Goldberg to testify as an expert witness as to his opinion on the question of Coyle's intoxication. He urges that this is a subject matter which is within the realm of common knowledge and requires no particular scientific knowledge, and that expert testimony elicited on a hypothetical basis is not admissible upon issues which are within the realm of common knowledge. Further, he contends that such testimony invades the function of the jury as it was the ultimate issue which was for the jury to determine.

[1-3] It is a well-established rule of evidence that, generally, the opinions of witnesses are inadmissible as evidence as witnesses are to testify as to the facts and the jury is to draw the inferences and form the opinions which are to govern the case. However, this rule is relaxed in certain situations where the facts are patent to the observation of all, in which cases opinion testimony of lay witnesses qualified by observation is admitted. Drunkenness or sobriety are within this area, so that witnesses qualified by ...


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