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Jackson v. Navik

OPINION FILED APRIL 2, 1976.

CAROL JACKSON, INDIVIDUALLY AND FOR THE USE AND BENEFIT OF DEBRA ANN JACKSON, A MINOR, PLAINTIFF-APPELLANT,

v.

CHARLES NAVIK ET AL., D/B/A HELVITIA HOTEL, ET AL., DEFENDANTS. — (WALTER KOESTER, A/K/A WALTER KESSLER, D/B/A LAST RESORT LOUNGE, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This was an action under the Dram Shop Act for loss of means of support by the wife and minor child of an intoxicant who had imbibed numerous drinks at a series of taverns starting in the morning of the occurrence at defendant's "Last Resort Lounge," went boating and suffered a quadriplegia after diving from the boat in shallow water. The action which arose in 1968 was tried on the theory that the drinks imbibed at defendant's tavern caused the intoxication "in whole or in part" and that the dive from the boat was "in consequence" of that intoxication. In a second count plaintiff's wife alleged that she suffered damage to property and was compelled to expend money for her husband's medical care and treatment. The action was tried without a jury and at the close of plaintiff's case the circuit court of Lake County granted defendant's motion for a finding in his favor and dismissed the action.

Plaintiff contends that the evidence adduced made a prima facie case for plaintiff and the court erred in allowing defendant's motion and entering judgment for defendant.

Section 64(3) (formerly 64(5)) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 64(3)) provides for motions for a finding, judgment or decree at the close of plaintiff's case in non-jury cases. It provides that in ruling on the motion the court shall weigh the evidence, and if the ruling on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered. This permits the trial judge, at the close of plaintiff's case, to evaluate the evidence and determine the credibility of witnesses.

• 1 On appeal, the reviewing court must examine the evidence, and in the light of these holdings, determine whether the trial court, after weighing the evidence, erred in deciding that plaintiffs failed to make a prima facie case. In determining the propriety of the trial court's ruling on a motion based on section 64(3) the reviewing court should not disturb the findings of the trial court unless such findings are manifestly erroneous. Bilyeu v. Plant, 75 Ill. App.2d 109, 118-19.

"By use of the phrase, `weigh the evidence,' in this context, the Civil Practice Act requires the trial judge, at the close of the plaintiff's case, to evaluate the evidence by determining the credibility of the witnesses, reasonable inferences to be drawn from their testimony, and, in general, the weight and quality of the testimony, in order to conclude whether or not the evidence to that point of the trial has made out a prima facie case in favor of plaintiff." De Bello v. Checker Taxi Co., 8 Ill. App.3d 401, 404.

Until 1969, the trial judge was required to view the evidence and all reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff and then decide whether it was sufficient to support the plaintiff's cause. (See Brubaker v. Gould, 34 Ill. App.2d 421, 440-50.) In 1969 in the case of Miller v. Heller, 106 Ill. App.2d 383, 393, the court adopted the dissent in Brubaker as the obligation of the trial court in weighing the evidence in a chancery case. In 1969 in a law case the court in Allfree v. Estate of Rosenthal, 113 Ill. App.2d 90, adopted the Brubaker dissent. By 1973 the court in Chappell v. Juergens, 11 Ill. App.3d 469, 473, stated, "It is now well settled that a trial judge may weigh the evidence * * * and he need not view the evidence in the light most favorable to the plaintiff."

Appellant in the instant case contends that the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510) is applicable to the issue before us. In Fisher v. City of Aledo, 23 Ill. App.3d 190, 192, it was held that it was not. But see Bochenek v. Bochenek, 5 Ill. App.3d 65, 68, where the Pedrick rule was suggested as an analogous standard.

• 2 Our courts have spoken expressly in terms of such evidence as making "a prima facie case" but they have not defined their meaning. It is at least arguable that the words were not employed in their primary sense. Ballantine's Law Dictionary defines "prima facie case" as "A case supported by sufficient evidence to warrant submission to the jury or trier of the fact and the rendition of a verdict or finding in accord therewith. A cause of action or defense sufficiently established by a party's evidence to justify a verdict in his favor, provided the other party does not rebut such evidence." Also see Morrison v. Flowers, 308 Ill. 189, 195; 32A C.J.S. Evidence, § 1016, at 626 (1964) and "Prima Facie Case — Dismissal," Annot., 55 A.L.R. 3d 272, 274 (1974). The Federal courts pursuant to their amended Rule 41(b) of the Federal Rules have held or recognized that a trial judge acting pursuant to that Rule, may grant a motion for dismissal of a non-jury suit at the close of the plaintiff's evidence, even where such evidence is sufficient in quantum and quality to make out a prima facie case. Our statute although similar in many respects to Rule 41(b) of the Federal Rules differs significantly in omitting to provide specifically that upon the motion a trial court may determine the facts. *fn1 Our courts have until recently interpreted our statute as precluding the trial court from dismissing at the close of plaintiff's evidence where such evidence is sufficient to make out a prima facie case. For example see De Bello, 8 Ill. App.3d 401, 405, where the court stated, "In our opinion, the evidence presented by plaintiff did tend to establish all the necessary elements of a prima facie case." Six months later the same court in a case where the issue was squarely raised (Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg, 11 Ill. App.3d 739, 744), concluded that the trial judge after weighing evidence (including any that may be favorable to defendant) which necessarily requires the court to draw reasonable inferences therefrom, determine the credibility of witnesses, and then not simply decide whether the plaintiff has made out a prima facie case, but make a final determination and enter judgment for defendant if the plaintiff has not met his burden of proof by preponderance of the evidence.

Not long thereafter some cases retreated to the prima facie standard: see Gray v. Schottmiller, 18 Ill. App.3d 812, 815; People ex rel. Scott v. Convenient Food Mart, Inc., 21 Ill. App.3d 97, 110; Rey v. Rey, 23 Ill. App.3d 274, 276.

The last expression to date is in Jackson v. Spivey, 26 Ill. App.3d 670, 674, where the court quoted extensively from the Hawthorn Mellody case apparently with approval.

At any rate, in support of their motion the defendants herein posed the question to the trial judge as follows: whether as a matter of law, plaintiff has presented a prima facie case for recovery such as to withstand defendant's motion.

• 3 So in ruling on the motion herein the trial court was required to evaluate evidence by determining credibility of witnesses, reasonable inferences to be drawn from their testimony, and, in general weight and quality of testimony, in order to conclude whether or not evidence to that point of trial made out a prima facie case in favor of plaintiff.

COUNT I

In the instant case the trial judge made a finding, "* * * The Court, however, feels there is not sufficient proof of any intoxication on the part of the injured party at the time he left the defendant's place of business, to wit, Last Resort Lounge".

Prior to an amendment which became effective on August 19, 1971, the language of the Dram Shop stated "* * * causes the intoxication [in whole or in part] *fn2 * * *."

The language of the statute "in whole or in part" is used with reference to the persons who sell or give the liquor. The intoxication may be produced by liquor sold by one or by many persons, but when produced, all who in whole or in part cause the intoxication are liable. (Neuerberg v. Gaulter, 4 Ill. App. 348, 350.) Did the alcoholic liquor served to Jackson in defendant's tavern contribute in some degree, no matter how slight, to Jackson's subsequent intoxication? (Osborn v. Leuffgen, 381 Ill. 295, 298.) As stated in Lichter v. Scher, 11 Ill. App.2d 441, 452, "* * * the dramshop keeper, may become liable even though the sale was made to a customer when he was wholly sober, if the customer thereafter by drinks purchased elsewhere became intoxicated."

Jackson's testimony showed that he began drinking between 11 and 12 o'clock at the defendant's tavern. He was sober on arrival, and had not eaten anything that morning. He met his friend Knudson and began drinking Vodka and 7-Up, he could not recall the exact number of drinks but it was more than one and that he and Knudson alternated in buying drinks. He was "feeling good" when they left the tavern. Knudson testified that Jackson had 4 or 5 drinks of Vodka and 7-Up at defendant's tavern, and that Jackson was not sober when they left to go to the Helvitia where they resumed drinking. Jackson said he had 10 to 15 drinks there. Knudson said 4 or 5. Jackson there bought a bottle of Vodka which was consumed on his boat by Jackson, his brother and Knudson while enroute to the Arbor. They were refused service at the bar of the ...


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