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Henry v. Bloomington Third Ward Comm. Club

OPINION FILED OCTOBER 3, 1980.

CHARLES D. HENRY ET AL., PLAINTIFFS-APPELLANTS,

v.

BLOOMINGTON THIRD WARD COMMUNITY CLUB ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McLean County; the Hon. SAM HARROD, III, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Dramshop action.

The issue is intoxication.

Was it a jury question?

Yes — we reverse.

The Henry family filed suit under the Dramshop Act against the Bloomington Third Ward Community Club and other defendants for personal injuries sustained by Charles Henry when Moses Pickett, the allegedly intoxicated person, shot Henry in the hip and then struck him in the head with the barrel of his gun. This appeal is from a judgment entered at the close of plaintiffs' case directing a verdict in favor of the defendants.

The only issue raised on appeal is whether the trial court erred in directing a verdict for the defendants at the close of plaintiffs' case. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, sets forth the applicable standard, namely, that it is appropriate to direct a verdict in defendants' favor if all of the evidence when viewed in its aspect most favorable to the plaintiffs so overwhelmingly favors defendants that no contrary verdict based on that evidence could ever stand. With that standard in mind, we briefly review the evidence.

Between 2 and 4 p.m. on August 17, 1975, plaintiff Charles Henry entered the Bloomington Third Ward Community Club with his brother-in-law, and the two men purchased some alcoholic liquor. Charles' brothers, Lloyd and Curvin, entered the bar shortly thereafter. Between 4:30 and 5 p.m., Elmer Thomas and Moses Pickett arrived at the tavern. Pickett and Thomas each ordered one mixed drink at the bar, each drink containing one ounce of alcoholic liquor. Plaintiff testified that he thought that both men had been drinking when they entered the bar and that both were intoxicated. At that time plaintiff knew Thomas but did not know Pickett. Plaintiff based his opinion regarding their intoxication on the manner in which the two men walked into the bar and leaned on the bar counter. The sole bartender of the dramshop on the date and time in question testified that in his opinion neither Thomas nor Pickett appeared intoxicated when they entered the bar and ordered their drinks. The bartender testified that he served Pickett and Thomas only one drink each on that date.

According to plaintiff, both men drank some of their drinks while walking to a table, and by the time they reached the table Thomas had finished his drink but Pickett was still drinking out of his glass. Thomas left the table three to four seconds later without his glass, but with a bottle of beer in his hand. Plaintiff did not see Thomas purchase the beer which he was holding. Thomas walked to the back door and into a back room of the bar out of plaintiff's sight. Thomas remained in the back room five minutes at most and came out of the room with something in his hand which plaintiff soon realized was a gun.

Thomas then approached plaintiff's brother Lloyd and slapped the side of Lloyd's head with the gun; the gun discharged up toward the ceiling. Lloyd fell to the floor; plaintiff then grabbed the hand in which Thomas was holding the gun and pushed Thomas up against the wall. Plaintiff tried to get Thomas to drop the gun. At that point, Pickett had a pistol in his hand. Pickett fired once at plaintiff and missed, then fired a second shot which hit plaintiff in the hip. Pickett then walked up to plaintiff, hit him with the barrel of the pistol, and plaintiff blacked out.

Plaintiff stated that three shots were fired in total, and that the two men, Pickett and Thomas, were in the bar a total of 15 to 20 minutes. The bartender testified that two shots in total were fired and that Pickett and Thomas were in the dramshop for approximately 15 minutes in total.

(Evidence was also presented by plaintiff on the nature and extent of the injuries he received as a result of this occurrence.)

The trial court directed a verdict for defendants, finding that sufficient evidence had been presented on the issue of Thomas' and Pickett's intoxication to entitle plaintiff to a jury determination, but further found that the absence of evidence that the particular dramshop caused the intoxication made a directed verdict appropriate. Thus, the question we must decide is whether the evidence of ...


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