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Halka v. Zupan

OPINION FILED JANUARY 22, 1979.

ANTHONY HALKA ET AL., PLAINTIFFS-APPELLEES,

v.

JEANNE ZUPAN, INDIV. AND D/B/A JEANNE'S LOG CABIN INN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiffs Anthony and Barbara Halka filed a dramshop action against defendant Jeanne Zupan. The suit was for injuries sustained by Anthony when one of defendant's intoxicated patrons allegedly struck him in the head with a pool cue.

The jury returned a verdict in plaintiffs' favor and awarded Anthony $60,800 in damages. (This amount was later reduced to $15,000 by the trial judge.) Barbara Halka was awarded $8,600 for loss of support. Defendant's post-trial motion alleging perjury was denied and defendant appealed.

On appeal defendant argues (1) that she was deprived of a fair trial due to the effect of prejudicial remarks either made or elicited by plaintiffs' counsel; (2) that the trial court erroneously denied defendant's post-trial motion for a hearing on the issue of perjured testimony; and (3) that the judge's award to Barbara Halka for loss of support was duplicitous.

We affirm in part, reverse in part, and remand.

Plaintiff Anthony Halka testified that at 8 p.m. on September 6, 1972, he drove to defendant's tavern on his motorcycle. He stated that while there, he had four beers. At approximately 11:20 p.m., he observed someone "messing" with his motorcycle and went outside to investigate. When the person sitting on his motorcycle refused to get off, a scuffle ensued. Someone yelled "fight" and a short man, later identified as Gary Shaw, ran out of the tavern and struck Anthony Halka in the head with a pool cue.

Anthony Halka's testimony was corroborated by Willis Grim who testified that he was at defendant's tavern on the night in question. He arrived at 9:30 p.m. and sat with Mr. Halka, while each drank a couple of beers. He stated that Shaw entered the tavern at 9:45 p.m. with a group of men. Shaw appeared sober and sat down three seats away from Grim. Grim testified that in the next 15 minutes, he observed Shaw drink five or six whiskey and beers and also bite a glass in half. Grim then went across the street to another tavern where he sat outside and later observed the attack on Halka.

As a result of the injury to his head, Anthony Halka incurred medical expenses and was unable to work. Subsequently, he and his wife filed the instant dramshop action against defendant Jeanne Zupan as the owner of the tavern where the incident took place. The jury subsequently returned a verdict in plaintiffs' favor. Anthony Halka was awarded $60,800 in damages, though that amount was later reduced by the trial judge to $15,000. Barbara Halka was awarded $8,600 for loss of support. In a post-trial motion, defendant alleged that Barbara Halka and Willis Grim committed perjury. Defendant requested a hearing on the issue. The motion was denied and defendant appealed.

The first issue we must resolve is whether this appeal should be dismissed. Plaintiffs argue that defendant did not file the report of proceedings and the record on appeal within the time limits prescribed by Supreme Court Rules 323 and 326. Ill. Rev. Stat. 1977, ch. 110A, pars. 323, 326.

• 1 Our review of the record reveals that although it was not filed within 63 days of the filing of the notice of appeal as required by Supreme Court Rule 326, it was filed well within the 35-day extension provision of that rule. The facts further reveal that defendant's motion for an extension of time for the filing of the record on appeal included lengthy affidavits showing a reasonable excuse for the failure to file earlier. Accordingly, the record was properly filed.

• 2, 3 As to the filing of the report of proceedings, it clearly was not filed within the required time. This fact alone, however, is insufficient to preclude this court's jurisdiction over the appeal. (Ray v. Winter (1977), 67 Ill.2d 296, 367 N.E.2d 678.) Further, much of the delay was caused by plaintiffs' refusal to stipulate to the accuracy of the transcript. Plaintiffs cannot now rely on a delay for which they were primarily responsible.

Having decided that defendant's appeal is properly before this court, we now consider defendant's contentions.

On appeal, defendant first argues that she was denied a fair trial due to the effect of improper, prejudicial remarks either made or elicited by plaintiffs' counsel during the examination of witnesses and during closing argument.

During the cross-examination of one of defendant's witnesses, plaintiffs' counsel inquired whether Gary Shaw was a big drinker. The witness answered in the affirmative and defense counsel immediately objected. On appeal, defendant argues that this evidence was not only irrelevant, but also highly prejudicial in that it allowed the jury to infer that Shaw was probably drunk and further that he was a "bad character." Defendant further cites as prejudicial, plaintiffs' counsel's statement during closing argument that Gary Shaw "was a bad character" who "drank like a fish" and "eats glasses." In addition to these statements which ...


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