APPEAL from the Circuit Court of Cook County; the Hon. TRAFTON
DENNIS, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
This proceeding involves two dramshop actions which were consolidated for trial. Both arise out of an occurrence in which Jackie Naylor was killed and Garrett Stewart injured. Barbara Naylor, widow of Jackie, sues on her own behalf, also as the next friend of Suzanne Naylor, her minor daughter, and as adminstrator of the estate of Jackie Naylor, for loss of support caused by his death. Plaintiff Garrett Stewart sues for personal injuries suffered by him in the same occurrence.
Both actions were first brought against the owners of two taverns, Andy's Barn and The Old Rendezvous, it being alleged that liquor had been obtained at both places by the parties who inflicted the injuries. Plaintiffs dismissed their cause of action against the owner of The Old Rendezvous, leaving as defendants Andrew Gronkowski, the owner of Andy's Barn, and Walter and Sophie Jadczak, owners of the building in which Andy's Barn is located. The jury found the defendants guilty and assessed damages at $40,000 for plaintiff Naylor and $1,500 for plaintiff Stewart. The trial court entered judgment upon the verdict. Defendants state the issues on appeal as follows:
(1) Whether testimony given at a prior criminal trial is admissible as evidence in a subsequent civil action where the witness is present and available to testify;
(2) Whether a dramshop owner can be held liable under the provisions of the dramshop act without a direct sale of intoxicating liquor to the person causing the injury.
The plaintiffs contend, as to point 1, that the statements made at the prior criminal trial qualify as declarations against interest and are thus admissible despite the hearsay rule; and as to point 2, that the trial court's instructions concerning defendants' dramshop liability were proper. The facts follow.
Kenneth Cunningham and his companions, John Liguie, Phillip Spagnola, and William McAvoy, while intoxicated, entered a tavern and began beating the patrons. Cunningham struck Jackie Naylor over the head with a pool cue and killed him. Plaintiff Stewart alleged that each or some of the four men assaulted him. Both complaints allege that the intoxication of the four was caused in whole or in part by alcoholic beverages obtained from Andy's Barn. The assaults in question took place at The Old Rendezvous tavern in Chicago, on February 19, 1965.
At the trial, Phillip Spagnola, then serving a sentence in the Illinois State Penitentiary for his part in the occurrences involved in this case, was subpoenaed and appeared as a witness. He testified that on February 19, 1965, he and John Liguie went to the home of Ernest Wisniewski and had something of an intoxicating nature to drink; that he did not remember whether he or any other person left Wisniewski's home to buy liquor that day; and that he did not remember how long he remained at Wisniewski's home.
John Liguie, also a participant, was called to testify. He refused to answer any questions because he had been convicted of murder in connection with the occurrence and his appeal was pending.
Kenneth Cunningham was called as a witness and testified that he was at the home of Wisniewski on February 19, 1965; that he did not know if he was in the company of Spagnola, Liguie, and McAvoy; that he had something intoxicating to drink, but did not himself purchase any alcoholic beverages that day. He further testified that he did not remember if any other member of the group bought alcoholic beverages that day. He admitted that he was in The Old Rendezvous tavern that night and that someone died there as a result of being struck on the head by the witness.
Spagnola was then recalled as a witness and the plaintiff sought to refresh his memory of the incident of February 19, 1965, by having him read a transcript of the testimony he gave at his trial for Naylor's murder. Spagnola stated that he did not want to read the transcript; that he did not recall anything of the night in question; and that he guessed the statements he made in his previous testimony were true.
William McAvoy, on parole from the Illinois State Penitentiary where he was serving sentence for his part in the occurrence, testified that he was at Wisniewski's home on February 19, 1965, having arrived there at 6:30 that evening with Spagnola, Liguie and Cunningham. He stated that he had something intoxicating to drink, and that during the evening Spagnola and Liguie went out and bought more beer and whiskey. He testified that he did not know where they went to buy it, but that they were gone for only about five minutes, and that Andy's Barn was next door to Wisniewski's home. He further testified that he went with Spagnola, Liguie and Cunningham to The Old Rendezvous on the night in question; that an argument took place between the bartender and himself; that all four men left the tavern and later returned, at which time Spagnola stood at the door with a gun while he, Cunningham and Liguie beat the patrons in the tavern. He testified that he did not hit Naylor.
The court then permitted the plaintiffs, over defendants' objections, to read into the record as declaration against interest, certain portions of the testimony which Spagnola had given at his trial for Naylor's murder. The testimony was to the effect that Spagnola had been drinking at Wisniewski's home on February 19, 1965, from 11:00 A.M. to 11:00 P.M.; that during the day he had occasion to go to Andy's Barn three or four times to buy liquor, and that at 11:00 P.M. he was drunk.
Andrew Gronkowski, the owner of Andy's Barn, testified that he was tending bar on the night in question, that he did not recognize any of the four men, and did not remember ...