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American National Bank v. Wisniewski

APRIL 2, 1974.

AMERICAN NATIONAL BANK, ADM'R OF THE ESTATE OF KAMIL W. BRAZDA, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

FRANK WISNIEWSKI ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. PRESIDING JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 14, 1974.

At approximately 5 A.M. on 22 December 1963, Kamil Brazda and the four members of his family were proceeding south on the Calumet Expressway (a divided four-lane highway) on their way to Florida for a vacation. As the Brazda automobile approached 167th Street, it was struck head-on in the southbound lanes by an automobile being driven northbound by one Albert Stynowick, who was allegedly intoxicated at the time of the accident. As a result of the collision Kamil Brazda and his son Roy were killed. Florence Brazda, Kamil's wife, and their remaining two children, Larry and Marcia, survived. Subsequently, on 26th March 1964, Florence Brazda committed suicide by shooting herself.

Prior to the institution of the present suit, American National Bank, as administrator of the estates of Kamil, Florence, and Roy, and as guardian of the estates of Larry and Marcia, filed suit (64 C 167) in the Federal District Court for the Northern District of Illinois against Albert Stynowick (who was a resident of Indiana). The amended complaint in that case was in five counts. Count I alleged the wrongful deaths of Kamil, Florence and Roy, as well as personal injury to Larry and Marcia, all caused by the negligence of Stynowick; Count II alleged property damage to the Brazda automobile, owned by Kamil, caused by the negligence of Stynowick; Count III and Count IV were identical to Count I and Count II except that they alleged willful and wanton conduct on the part of Stynowick and prayed for a finding that malice be the gist of the action. Count V was a family expense count for the burials of Kamil, Florence, and Roy.

Judgment was entered by stipulation against Stynowick with a finding that malice was the gist of the action, as follows:

"American National Bank as administrator of the estate of Kamil W. Brazda, deceased $31,875.00

American National Bank as administrator of the estate of Florence Brazda, deceased 20,000.00

American National Bank as administrator of the estate of Roy Alan Brazda 8,000.00

American National Bank as guardian of the estate of Larry Brazda, a minor 1,000.00

American National Bank as guardian of the estate of Marcia Brazda, a minor $1,000.00"

Stynowick's insurance carrier paid in the sum of $21,875, which was the full amount of its coverage. Thereafter, American National Bank petitioned the Probate Court to allocate $12,000 of the insurance recovery to the estate of Florence, $8,000 to the estate of Roy Alan, and $1,875 to the estate of Kamil. This latter payment was for the property damage done to the Brazda automobile. The petition was granted, and the respective amounts were so allocated. The Bank concedes that this allocation of the insurance recovery was proposed by it for the purpose of maximizing the potential recovery in the instant Dram Shop actions.

On 4 September 1964, American National Bank, in its representative capacities, filed suit in the Circuit Court of Cook County against: (1) Frank, Hazel, Joseph, Agnes, Walter, and Helen Wisniewski, and Joseph Wines as owners and operators of the Cozy Corner Tavern; (2) Benjamin Green, Mabel Green, Leslie O. Johnson, and Leslie A. Johnson as owners and operators of the Green Shingle Tavern; and (3) a Dr. Daple, who had given a party attended by Stynowick on the night before the accident. The suit was commenced pursuant to the Dram Shop Act (Ill. Rev. Stat. 1963, ch. 43, par. 135). The second amended complaint contained three counts: Count I claimed $20,000 damages for injury to the means of support of the beneficial plaintiffs Larry and Marcia Brazda, caused by the death of Kamil. Count II claimed $20,000 damages for injury to the means of support of the same two beneficial plaintiffs, caused by the death of Florence Brazda. Count III claimed $10,000 damages for personal injuries to Larry, and also $10,000 damages for personal injuries to Marcia.

Appearance for the Wisniewskis was filed by Attorney Conrad W. Sanders, who had been retained by the Wisniewskis' dram shop liability insurance carrier. On 25 June 1965, Sanders filed a notice of motion to withdraw because the insurance company which had retained him had become insolvent. A certification on the notice of motion, dated 15 June 1965, stated that a copy of the notice had been mailed to the Wisniewskis and to Joseph Wines, care of Cozy Corner Tavern. Apparently this motion was allowed, although the order does not appear in the record.

On 23 September 1965, Dr. Daple was dismissed from the case. On 15 July 1968, the owners and operators of the Green Shingle were dismissed after having paid $2500 to the ...


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