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Watson v. Fischbach

JUNE 28, 1972.




APPEAL from the Circuit Court of DeKalb County; the Hon. JOHN S. PETERSEN, Judge, presiding.


Plaintiff, Beverly A. Watson, filed a dram shop action (Ill. Rev. Stat. 1967, ch. 43, par. 135) on behalf of herself and her daughter against the defendant tavern owners for loss of support by reason of the death of William Watson, plaintiff's husband, in an auto accident on August 9, 1968. Plaintiff appeals from the judgment based upon a verdict of the jury in favor of the defendants.

On August 9, 1968, William Watson, a twenty-five year old construction worker, crashed into a utility pole some 50 feet from the edge of Route 72 upon which the deceased had been driving. Watson was removed from the vehicle and taken to the emergency room of Sycamore General Hospital. There was no indication of skid marks from the tires of Watson's car. The investigating officer was not close enough to Watson at any time to ascertain if there was an odor of alcohol on his breath.

Dr. Ovitz, who examined Watson in the emergency room, noticed the odor of alcohol on Watson's breath. Watson denied he had been drinking when queried by the doctor on this point. Dr. Ovitz saw Watson in the emergency room at approximately 9:30 P.M. Watson died the same evening some time between 11:00 and 11:30 P.M.

There was testimony that Watson stopped at the taverns of the defendants after leaving work at approximately 4:00 P.M. The testimony as to the approximate time he was in each establishment and the length of his stay is nebulous, contradictory and for the most part self-serving.

Plaintiff's witness Harold, an acquaintance of Watson's, placed Watson in Fischbach's tavern, located in Genoa, around 4:30 P.M. Watson stayed fifteen or twenty minutes, had one beer, and left at the same time Harold left. Watson showed no signs of intoxication.

Watson then went to the Clover Leaf Tap in Genoa, between 5:05 and 5:15 P.M. where he had another beer. Continuing, he proceeded to the Uptown Tavern in Genoa where he had one or two beers. A partner in the business, Frank DiMario, placed Watson in the tavern around 5:20 P.M. He then went to Kingston, Illinois. In Kingston, Watson went to Johnson's Tavern where he had a beer and a fish fry consisting of fried fish, french fried potatoes, and cole slaw. Next, Watson went to the Corner Tap in Kingston. Doak, a partner in the establishment, testified Watson came in very close to 5:00 P.M. and had two beers which he drank quickly. Watson received a phone call while he was there.

Mrs. Watson testified that she talked by telephone to her husband at the Corner Tap some time between 7:00 and 7:30 P.M. The trial court excluded her opinion as to whether or not her husband was intoxicated.

Plaintiff's most serious allegation of error is that the trial court improperly excluded evidence of the results of a post-mortem analysis of the blood of the deceased for alcohol content on the basis of a proper lack of foundation. Reliance is placed upon Woolley v. Hafner's Wagon Wheel, Inc. (1961), 22 Ill.2d 413.

In Woolley, a dram shop case, an employee of a pathologist's laboratory group took a blood sample from the deceased on the night of the occurrence at a Moline hospital; labeled it; made an entry in a night record book and placed it in a hospital refrigerator. The following day, one of two employees of the medical group picked up the same and took it to the groups' laboratory to be analyzed. Evidence showed that entries made in the records kept by the medical group were normally taken from the information contained on the labels of the bottles with the specimens in them. There was evidence there had never been a single case of loss, misplacing, mislabeling, or tampering with a blood sample. All available records of the laboratory were placed in evidence and every person having knowledge of material matters about the sample testified.

The court held the results of the analysis admissible on the basis that it had been shown by a preponderance of the evidence and by the highest degree of proof available that the blood sample analyzed was taken from the decedent and was in an unchanged condition when analyzed.

Here, Dr. Ovitz, who treated Watson in the emergency room, was called back to the hospital between 11:30 and 11:40 P.M. He went to the deceased's hospital room. In the presence of a deputy coroner, whose name he did not know, he took a blood sample from the heart of the deceased and placed it in a vial furnished by the deputy coroner. The doctor denied that he took the blood sample in the emergency room. He was certain he only took one sample.

Plaintiff made an offer of proof out of the presence of the jury of the testimony of witnesses Miller and Fioresi which the court rejected:

Miller, a deputy coroner at the time of the accident, went to the hospital after being informed of the death. He took with him a blood tube furnished by the Illinois State Toxicology Laboratory. As far as he knew, the tube had not been opened. At the hospital, Miller gave the vial to a doctor in the emergency room whose name he did not know. He watched as the doctor drew blood from a corpse and put it in the tube. Miller ascertained the name of the deceased as William Watson from a wallet lying next to the body; labeled the specimen by filling out an enclosure form; and placed it in a mailing container. In labeling the specimen, Miller noted the blood was drawn at 11:59 P.M. He took the sealed container home with him and mailed it the following morning to ...

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