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Gordon v. J.l. Manta

JANUARY 19, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.


The plaintiff brought this action as administrator, to recover damages arising out of the death of Jack Gordon. He was allegedly shot and killed on the premises of J.L. Manta, Inc. [hereinafter referred to as Manta], by its employee, defendant Arcell McGhee. The case went to the jury on two counts, charging defendant Manta with negligence and charging both defendants with assault and battery. The jury rendered a verdict in favor of defendant on the negligence count and a verdict in favor of plaintiff against both defendants on the assault and battery count, in the amount of $17,500.

The jury was also given the following special interrogatory: "Do you find that any force used by defendant Arcell McGhee on the occasion in question was used in self-defense as defined in these instructions?" The jury returned an affirmative answer to this special interrogatory, along with its verdict in the amount of $17,500 on the assault and battery count. The trial court set aside the general verdict for plaintiff because it was inconsistent with the jury's answer to the special interrogatory and entered judgment for the defendants on both counts. From this judgment plaintiff appeals. No questions are raised on the pleadings.

Plaintiff contends that it was error to submit defendant's special interrogatory to the jury because it was ambiguous, misleading and not directed to an ultimate fact, and that the special finding was consistent and reconcilable with the general verdict. The plaintiff also contends that the court erred in giving a certain other instruction and in admitting certain evidence purporting to be a blood alcohol test of decedent's blood, in that no proper foundation was laid.

The record discloses that the verdict for plaintiff was on plaintiff's amendment to the amended complaint which pleaded an assault with a deadly weapon inflicting injuries to the decedent, causing his death. The occurrence took place in the theatre lobby about 10:00 P.M., on May 17, 1964. There was no direct testimony by any witness as to the actual shooting or the circumstances that occurred at that time. Joseph Thomas, employed by the theatre as a guard, was watching a movie when he heard two noises which sounded like firecrackers. He went out of the inside lobby where he observed Jack Gordon lying flat on his back. Arcell McGhee, as assistant manager of the theatre, was standing next to a staircase and handed him a .38 snub nose pistol. When the police came he observed them taking a knife out of Jack Gordon's hand. He related that there had been many previous disturbances at the theatre because it was a difficult neighborhood, and this kept him busy. He also carried a gun.

Ralph Porter, a brother-in-law of Dorothy Gordon, testified that he was in the theatre premises the evening of the occurrence. He heard McGhee tell Jack Gordon he wanted to talk to him because he wanted to make everything all right with Mr. Grossman [the theatre manager], and McGhee said "OK." He then went inside the theatre to see the movie. While there he heard two shots.

Arcell McGhee, called as a witness under Section 60 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 60), testified that he purchased a .38 snub-nosed revolver in Geneva, Wisconsin. He took it to the Filmore Police Station and had it registered with the Chicago Police Department.

George Watson, a police officer for the City of Chicago, was called as a witness. Officer Watson appeared pursuant to a subpoena requiring him to produce certain police records. He identified plaintiff's exhibit no. 13 as a firearm and serial index card used when firearms are registered, plaintiff's exhibit no. 14 as a gun record listing the ownership of a certain firearm by its serial number, plaintiff's exhibit no. 15 as a gun record also listing the firearm by serial number and plaintiff's exhibit no. 16 also as a gun record listing the firearm by serial number, its owner, and place and time of purchase. He testified that all four exhibits were records kept in the ordinary course of business by the Chicago Police Department, and all four were received into evidence. Officer Watson testified that the exhibits showed that a Smith and Wesson revolver, blue steel, 38 caliber, six shots, serial number C66085 was registered to one Arcell McGhee, who was listed as having the occupation of theatre manager.

Appellant contends that it was error to submit defendant's special interrogatory to the jury in that it was ambiguous, misleading and not directed to an ultimate fact. In the answer filed by the defendants to the amendment to the amended complaint, they alleged as an additional defense that "any force used by Arcell McGhee against Edgar Jack Gordon on the occasion in question was used in self-defense and was in fact and was reasonably believed to be necessary to defendant himself and to prevent imminent death or great bodily harm to himself."

• 1 The function of a special interrogatory is to require the jury's determination as to one or more specific issues of ultimate fact, and is a check upon the deliberations of a jury. Sommese v. Maling Bros., Inc., 36 Ill.2d 263, 222 N.E.2d 468.

• 2 Appellant argues that the special interrogatory does not relate to any ultimate fact because it fails to limit the force used by defendant McGhee. "The most that is established by the special finding is that defendant McGhee was using force to defend himself when he killed decedent. This is an evidentiary fact rather than the ultimate fact of legal defense." We have examined the record and conclude that this objection is without merit. The conduct of the decedent was an issue in the case and in the judgment of the trial judge it was an ultimate fact to be considered by the jury, and we believe he was correct.

It is also claimed that there was in fact no evidence that the decedent made any attack on McGhee. There is circumstantial evidence to the contrary. The decedent had formerly been a theatre employee and had been discharged for failure to do his work assignment. He was, however, given a shoe-shine concession in an adjacent part of the premises. There had been many disturbances from time to time in the theatre which required the hiring of bouncers. On the evening in question the theatre manager, Leonard Grossman, said it was a wild and rough evening and there was a lot of trouble in the place used by the decedent. There had been trouble there on previous occasions.

At 9:00 P.M. he told the decedent to close up because many of the boys in his place were drunk, belonged to gangs and would cause him trouble. Gordon answered that he would close up and get rid of the boys. Ten minutes later, however, the decedent who was drunk, called him vile names, chased him about the premises and yelled he would get him. He fled into the box office. McGhee stepped in between them and took Gordon outside. Later the decedent apologized to Grossman, and at 10:00 P.M. Grossman left the theatre. When the police came after the shooting they took a knife out of the decedent's hands.

While it is true that there was no direct evidence that McGhee may have been acting in self-defense, which justified his killing of decedent, the evidence did comprise a number of facts and incidents which, joined together, convinced the jury that the chain of circumstantial evidence and the reasonable inferences to be drawn therefrom was extremely strong that McGhee shot the decedent in self-defense. McGhee took the stand as a witness for the defense. Plaintiff ...

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