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Caruso v. Kazense

JUNE 28, 1974.

RAMONA CARUSO ET AL., PLAINTIFFS-APPELLANTS,

v.

JAMES KAZENSE, D/B/A JIM'S PLACE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Tazewell County; the Hon. ROBERT E. HUNT, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages under the Dram Shop Act (Ill. Rev. Stat. 1971, ch. 43, par. 135). A jury gave a verdict for defendants upon which the Circuit Court of Tazewell County entered the judgment from which this appeal is taken.

The plaintiff, Ramona Caruso, is the wife of Ronald Caruso; Chad Caruso and Rhonda Caruso are the minor children of Ramona and Ronald. James Kazense is the owner-operator of Jim's Place, a tavern in Creve Coeur, Illinois. Merle Smith is the owner of the premises occupied by the tavern.

On October 22, 1971, Ronald Caruso went to the Riverside Inn, in Creve Coeur at about 8 o'clock in the morning and stayed there until about 6 o'clock in the evening. He drank from 20 to 40 12-ounce bottles of beer and when he left the Riverview Inn he was admittedly intoxicated. He went directly from the Riverview Inn to Jim's Place, arriving there sometime after 6 o'clock P.M. He was intoxicated when he arrived.

There was considerable testimony that he had something to drink while at Jim's Place. Robert Neavill said he saw Ronald at the bar drinking a beer; Jerry Fehr said that Ronald first ordered a 7 and 7, and also had a 6-ounce glass of mixed peppermint schnapps, bourbon and rum, and he also saw Ronald drink 4 or 5 bourbon and rum drinks. Jack Vanderheydt, the bartender at Jim's Place, stated that shortly after Ronald came in he ordered a beer and was told to help himself from a setup at the end of the bar, as it was free. He denied serving any mixed drinks to Ronald.

Donald Aeschilman said Ronald was drinking a beer. James Kazense, said he did not see Ronald have a drink, but there was beer all over the bar, he imagined that a beer in front of Ronald was Ronald's. There were 50 to 80 people there for a surprise party for Jim. Ronald testified that he had beer and mixed drinks and peppermint schnapps at Jim's Place. Nancy Britton testified that she saw Ronald drinking beer and she saw him leave with a couple of six-packs in a sack.

Ronald left Jim's Place at about 9 P.M. He was intoxicated when he left. Almost immediately after leaving he became involved in an accident. The police found a six-pack of beer in his truck after the accident.

Ronald Caruso had been steadily employed and had supported his wife and children. He suffered serious, permanent injuries as a result of the accident.

The plaintiffs contend:

1. That the trial court should have directed a verdict for plaintiffs and against defendants on the issue of liability.

2. That the verdict was against the weight of the evidence.

3. That the closing argument of defense counsel in referring to the absence of Melvin Russell (the operator of the Riverview Inn) as a defendant and arguing that it was Melvin Russell who was responsible, was improper.

Effective August 1, 1971, the Dram Shop Act was amended so that the provisions pertinent to issue now before us reads as follows:

"Every person who is injured in person or property by an intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * * An action shall lie for injuries to means of support * * * in consequence of the intoxication, habitual or ...


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