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Koshman v. Glass Pitcher

AUGUST 18, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. CHERRY, Judge, presiding.


The plaintiff, Laverne Koshman, the widow of Raymond Koshman, filed a complaint against the defendants, William Hindes and Mildred Hindes, the licensees of the Glass Pitcher, a tavern located in Franklin Park and operated by the defendant, Glass Pitcher, Inc., alleging that the defendants sold or gave intoxicating liquor to Alfred Hindes, who became intoxicated and, as a result of the intoxication, shot and killed Raymond Koshman. (Ill. Rev. Stat. 1969, ch. 43, par. 135.) William and Mildred Hindes were dismissed voluntarily, and a jury returned a verdict in favor of the defendant, Glass Pitcher, Inc.

No argument is made that the verdict is against the manifest weight of the evidence. The plaintiff contends, however, that prejudicial error occurred when the defense attorney asked improper questions during cross-examination of several witnesses.

Around noon of February 18, 1969, Alfred Hindes left the home of his daughter, Mrs. Margaret Maher, in Niles and went to the Glass Pitcher Tavern at 3248 River Road, Franklin Park. His son, the defendant William Hindes, was working there that day but the tavern was not otherwise opened for business. Alfred Hindes remained there for about two hours talking to his son. In that time William saw Alfred serve himself two steins of tap beer. He was not always in the presence of his father and there would not have been anything to prevent his father from drawing other beers or taking other liquor. Both Alfred and William Hindes left the Glass Pitcher at approximately six o'clock in the evening.

Alfred Hindes returned to the home of his daughter at about 7 o'clock that evening and stayed for about 15 or 20 minutes and had something to eat. His son-in-law was also home that evening and talked with him. Hindes had asked his son-in-law for directions to Sleepy Hollow. Both Mr. and Mrs. Maher were of the opinion that Hindes was sober although, according to Mr. Maher, "he had something to drink." Mr. Maher also testified that his father-in-law had a rather large capacity for alcohol and that he had a temper that appeared when he was drinking. Alfred Hindes then left, and Mrs. Maher expected him to return.

At about 8:45 p.m. Alfred Hindes drove his car into a gas station at Dundee where he asked the attendant, Joseph Lullie, for directions to Plum Court. Lullie characterized the man's speech as slow, deliberate and incoherent. Lullie smelled alcohol on his breath and was of the opinion that Hindes was drunk.

Hindes arrived at the home of Timothy O'Connor at 21 Plum Court, Sleepy Hollow, directly across the street from the Koshman home. Hindes said he was lost and asked O'Connor to help him. He asked for 4 Plum Court, which, O'Connor said, was a vacant lot. O'Connor then asked whom he was looking for, and Hindes said, "Koshman." O'Connor told him that they lived directly across the street. Hindes turned around and asked, "That house?" and O'Connor told him, "Yes." Hindes stepped off the O'Connor front porch, turned around, thanked O'Connor for his help and shook his hand. O'Connor thought he was a little bit confused but appeared normal. He testified that Hindes gave no cause for him to be alarmed.

At that time the plaintiff, her husband and three children were watching television in their home at 3 Plum Court. About 9:30 p.m., the door-bell rang and the Koshman son went to answer it. He returned to the family room to tell his father that there was someone there to see him. His father got up from the couch and went to the front door hallway, from which the plaintiff heard a low murmur of voices. Within what seemed "like a minute," there were two gunshots. The plaintiff ran to the front hallway where she found her husband lying in a pool of blood. She told her children to call the police; and she attempted to block Hindes from leaving, but he was able to drive his car around hers and escape. She managed to get his license number. She testified that when she first saw him sitting in the car, he was staring at her and that later he was driving slowly and aimlessly.

Illinois State Policeman Jack Ericson, pursuant to a dispatch he received regarding the shooting, stopped the car driven by Alfred Hindes. Hindes got out with a .38-caliber revolver in his hand and then shot himself. He was taken by ambulance to the emergency room of Geneva Community Hospital. Blood samples taken from him were found to contain .19% alcohol. Dr. Milton Ostroff testified that a person with that blood alcohol reading "would be very drunk" and that the person's "thought processes would be diminished tremendously."

Both Hindes and Koshman died as a result of the bullet wounds; and it was stipulated that the bullets taken from Koshman's body were fired from the gun recovered from Hindes. No motive was established for the killing. Koshman owned 49% of the stock in the Glass Pitcher Corporation.

Joseph Lullie testified on direct examination that in his opinion Alfred Hindes was drunk shortly before the death of Raymond Koshman. On cross-examination he was questioned about his failure to mention the alleged intoxication of Hindes in a statement which he made to the Sleepy Hollow Police Chief two days after the shooting. The plaintiff contends that this cross-examination constituted reversible error.

• 1, 2 The court sustained objections to all the questions by which the defendant sought to show that in his statement to the Police Chief the witness did not say that Hindes was intoxicated. In our view the questions were proper. "If a former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent." (McCormick On Evidence § 34 at 68 (2d ed. 1972); see also Esderts v. Chicago, Rock Island & Pacific R.R. Co., 76 Ill. App.2d 210, 222 N.E.2d 117.) The plaintiff, in her reply brief, concedes the propriety of the questions but urges that the repeated questions on a subject previously ruled improper was prejudicial. There is no merit to this argument; and we note nothing improper in the manner in which the defense attorney attempted to convince the court that he should be permitted to ask the questions.

During the cross-examination of Mrs. Koshman the following occurred:

"Q. Now, after this occurred did you give a statement ...

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