APPEAL from the Circuit Court of Vermilion County; the Hon.
FRANK J. MEYER, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
This appeal arises out of litigation brought under the Illinois Dram Shop Act (Ill. Rev. Stat. 1969, ch. 43, ¶ 135) by Nancy Elaine Craft on behalf of certain minor dependents of one Paul Craft. The trial court entered judgment upon a jury verdict for defendant and the plaintiffs appeal.
On appeal, it is urged that the conduct of defense counsel was prejudicial; that his remarks in opening argument were not supported by evidence; that he failed to connect up certain evidence to relevant issues being tried; and that his remarks in closing were improper due to the failure to connect up the conditionally relevant facts with subordinate facts. Plaintiffs also attack the propriety of the expert testimony of Dr. Stan J. Bobowski and submitted that it should have been stricken.
The incident giving rise to this litigation occurred on March 19, 1971, when Paul Craft, who was allegedly intoxicated, engaged in a fight with Mr. Al Roberts. The altercation took place around 2:30 A.M. outside of Lary's Tavern. Mr. Craft sustained extensive head injuries as a direct result of the altercation.
With the incident at Lary's Tavern, Mr. Craft terminated a long drinking bout, which began approximately 9 A.M. on March 18, 1971, at the Starlite Inn, the defendant's tavern. Craft remained in the Starlite Inn until 2 P.M. He then returned home. He was allegedly in an intoxicated state at that time. He left home at approximately 2:45 P.M. ostensibly to go to work, but ended up at Lary's Tavern sometime after 3 P.M. He remained there until 9:30 or 10 P.M. He then went to his place of employment and picked up his paycheck. He proceeded to go to another tavern and then to his brother's residence where he remained until 12:30 A.M. Thereafter he returned to Lary's Tavern.
Once at the tavern, Craft began to bother various patrons, including Mr. Roberts. He struck up a conversation with Roberts, the tone of which ranged from fraternization to belligerence. After Roberts left the tavern, Craft followed him, began calling him names, and eventually attempted to hit him, which resulted in Roberts defending himself and knocking Craft to the ground. According to Roberts, he had no idea why Craft assaulted him. Craft was unable to recall what precipitated his conduct.
In defendant's opening statement it was submitted that the proximate cause of the altercation between Craft and Roberts was not Craft's drunkenness but the rivalry between the two men who were purportedly dating Myrtle Newell. Counsel stated:
"In addition to that we feel that the evidence will show that actually what the fight was caused by was the fact that Mr. Craft being a married man was going with another woman, Myrtle Newell. Mr. Roberts was, too, and they had a disagreement and that is what caused the matter."
During cross-examination of Roberts, defense counsel raised the existence of the rivalry that possibly existed between Craft and Roberts over Myrtle Newell. Counsel asked whether Craft became belligerent because he wanted Roberts to stop dating Myrtle Newell and that perhaps Craft had threatened him because he had been dating Mrs. Newell. Plaintiffs' counsel objected, contending that the reference made to Newell was reversible error. The court sustained the objection.
On cross-examination of Craft, defense counsel asked him whether he had stopped and seen Myrtle Newell the day in question. An objection was made by plaintiffs' counsel and defense counsel promised that "I am going to connect it up." The court permitted the answer to stand. Defense counsel continued this line of questioning.
In closing argument, defense counsel made repeated reference to the relationship in question and that this relationship and not intoxication was the probable cause of Craft's injury. On one occasion during the closing argument, plaintiffs' counsel objected to defense counsel's argument. Defense counsel stated:
"Now, Walter Newell, who was the son of the girlfriend, Myrtle, and you remember this is the girl that Paul Craft didn't meet, except testimony was that he had met her for a year or more in the back in the booth in the corner in the dark at Mr. Eichoff's Tavern."
Plaintiffs' counsel stated: "If the Court please, that wasn't the testimony and we object." The court sustained the objection. No other objection was made by plaintiffs' counsel during cross-examination.
Dr. Stan Bobowski was called in defendant's case-in-chief as an expert witness. The purpose of his testimony was to establish that the alcohol consumed by Craft in defendant's tavern could not have contributed to his intoxication in whole or in part at the time he received his injuries. After Bobowski was qualified as an expert witness, he was asked a series of hypothetical questions dealing with the oxidation rate of alcohol in a male 5'9" in height and weighing approximately 155 pounds who had consumed six to eight 12-ounce bottles of beer each containing 15 milligrams of alcohol from between 9 A.M. to 2 P.M. All the questions were objected to by plaintiffs' counsel on the grounds that they lacked proper foundation, were irrelevant and immaterial. Eventually, Bobowski testified that the alcohol consumed in the Starlite Inn from between 9 A.M. and 2 P.M. would not have rendered Craft intoxicated; and ...