APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Plaintiff brought suit under the Illinois Dramshop Act for damages arising from personal injuries incurred from an assault by an "allegedly intoxicated person" (AIP). It is alleged that John Coonce became intoxicated at a tavern operated by his wife, the defendant herein. A jury in the Circuit Court of Peoria County returned a verdict for plaintiff in the amount of $30,961 which was reduced to the statutory limit of $15,000. Judgment on the verdict was entered thereon and defendant has appealed, contending the trial court erred in refusing to allow defendant to raise the affirmative defense of provocation for the first time on the day of trial. The defendant also raises other issues regarding the propriety of the trial court's rulings on the admissibility of certain evidence dealing with such questions as the sale of beer to persons other than the AIP, prior altercations between the plaintiff and the AIP, plaintiff's physical condition subsequent to the injurious occurrence, etc.
The case was filed on January 18, 1977. Defendant filed a motion to strike, which was granted on March 25, 1977. Plaintiff filed an amended complaint on April 14, 1977. Defendant filed a combined answer and motion to dismiss, with the motion to dismiss being granted on June 10, 1977.
On January 7, 1980, the plaintiff filed a motion to amend his complaint. No objection or request for continuance was made by the defendant, and the amendment was allowed on January 22, 1980. Thereafter, the defendant filed a motion to strike on January 29, 1980. The defendant never called up the motion to strike prior to the commencement of trial and the motion was heard and denied in chambers prior to trial. On February 1, 1980, the plaintiff moved to amend his complaint by striking all claims for lost earnings. The defendant voiced no opposition to the amendment, and it was granted.
On February 11, 1980, the day of trial, the plaintiff filed a motion in limine asking that an order be entered precluding evidence of an alleged scuffle between the plaintiff and the defendant at a time and place remote from the assault of John Coonce on the plaintiff which was the subject matter of the complaint, and said motion was granted. After the motion was granted there was a discussion between the court and counsel regarding this ruling. The record does not reflect a motion on the part of the defendant to amend his answer to raise the affirmative defense of provocation. Apparently this was discussed in a conference which was held off the record, because at one point the trial judge indicated a willingness to allow such an amendment. However, after consideration the trial judge indicated he would not permit the defendant to raise the affirmative defense of provocation. No copy of the proposed amendment raising this defense was presented to the trial court.
After four jurors were sworn, it was discovered that the defendant had not answered the complaint as amended. The trial court noted that the complaint in its final form differed from the amended complaint filed on April 14, 1977, only in that paragraph 3 had been amended to allege a sale of beer to cohorts of John Coonce with the knowledge that John Coonce would consume the beer. The court observed that the defendant's answer to the complaint filed on April 14, 1977, admitted paragraphs 1 and 2 and denied all of the remaining paragraphs, including paragraph 3. As paragraphs 1 and 2 remained unchanged, the trial court ordered that the defendant's previous answer admitting those paragraphs, but denying the balance of the complaint, would stand as the defendant's answer.
• 1 Defendant argues that the provisions of section 46 of the Illinois Civil Practice Act providing in part that amendments to pleadings may be made "at any time before final judgment" enable her to wait three years to raise on the day of trial, an affirmative defense of provocation in a dram shop case founded upon an AIP's assault of plaintiff. We disagree. Section 46 also provides that such amendments must be on "just and reasonable terms." (Ill. Rev. Stat. 1979, ch. 110, par. 46.) We believe it is both unjust and unreasonable to allow a litigant to wait for years to raise a surprise defense on the day of trial.
• 2 It is clear that the allowance of amendments falls within the discretion of the trial court and that absent a showing of manifest abuse of discretion, the decision of the trial court should not be upset. Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.2d 151, 335 N.E.2d 10; Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill.2d 1, 280 N.E.2d 437.
• 3, 4 Furthermore, the failure of the defendant to make his proposed amendment a part of the record deprives this court of any factual basis upon which to find that there was a manifest abuse of discretion below. It has been held that failure to make a proposed amendment part of the record precludes a finding that denial of leave to amend was a manifest abuse of discretion. Hassiepen v. Marcin (1974), 22 Ill. App.3d 433, 318 N.E.2d 162.
• 5 The defendant further contends that it was error to permit the plaintiff to introduce evidence regarding the purchase of beer by third parties. Such evidence would normally be considered irrelevant, if not properly connected to the question of the source of the intoxicants furnished plaintiff's assailant.
The evidence showed that the AIP, John Coonce, and four others spent the afternoon in a garage located 30 to 40 feet from the defendant's tavern. Testimony showed that the five of them consumed four cases of beer in approximately equal shares. The defendant knew that her husband's group had at various times drunk beer in the garage, and had on occasion supplied kegs of beer to be drunk in the garage. On other occasions John Coonce had taken beer from the tavern to the garage with his wife's knowledge.
On the day in question various members of the group in the garage made trips to obtain beer. The defendant knew all of them and knew they were part of the "pit crew" or group that worked with her husband on his race car. It took only three to four minutes when someone left to obtain the beer. Except for the defendant's bar, the nearest place to obtain beer was 2 1/2 blocks away. One member of the group testified to personally making one or two trips to defendant's bar to obtain beer to be drunk that day by the men working in the garage. He bought the beer from the defendant, Wanda Coonce. After consuming all of the beer in the garage, John Coonce went into his wife's bar and consumed 10 to 12 more beers.
The Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135) provided that "Every person who is injured in person or property by any 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."
The operable act for a dramshop action is simply a sale which causes the intoxication of a person and the injury by that intoxicated person of another person or property. The statute itself contains no language ...