Appeal from the Circuit Court of Cook County; the Hon. Walter
J. Kowalski, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
On November 2, 1979, Stanislaw Buczyna was killed when the automobile he was driving collided head-on with a truck owned by Cuomo & Son Cartage Company (Cuomo) and driven by its employee, Tomas Arias (Arias). The plaintiff, Helena Buczyna, brought this action individually, and as special administrator of the estate of Stanislaw Buczyna, and as the mother and next friend of Stanislaw's minor children seeking damages under both the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, pars. 1, 2), and the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, pars. 94 through 195). The wrongful-death claim named Cuomo and Arias as defendants; and the dramshop claim named a tavern, Silver Jug, Inc., and the owner, Val Haines, as defendants. Prior to trial, the court denied the defendants' motion to sever the two claims and the defendants' motion in limine to exclude evidence of Arias' drinking on the day of the accident. At the conclusion of the trial, the jury returned a $1.5 million verdict in favor of the plaintiff on the wrongful-death claim, but found in favor of the defendants on the dramshop claim. Defendants' post-trial motion was denied, and they now bring this appeal.
Defendants, Cuomo and Arias, raise numerous contentions in this appeal arguing that the judgment of the circuit court should be reversed in its entirety, that the judgment should be reversed and remanded for a new trial, or that award of damages should be vacated or reversed as grossly excessive. Among their contentions are the following: (1) the defendant, Tomas Arias, was not incompetent to testify under the Dead Man's Act (Ill. Rev. Stat. 1983, ch. 110, par. 8-201); (2) the jury should have been instructed on the issue of plaintiff's contributory negligence; (3) the evidence of Arias' drinking on the night of the accident should not have been admitted because there was no proper evidence of intoxication; (4) the eyewitness' testimony of Thomas Marrs was inherently unreliable and should be stricken; (5) the trial court should have directed a verdict in favor of the defendants on the issue of whether Arias was acting within the scope of his employment; and (6) the verdict was excessive and should be set aside or alternatively should have been reduced.
On the day of the accident, Tomas Arias and Vito Cuomo claimed they had been in Wisconsin where they had delivered a pool table to Vito's vacation home. When they returned to the defendant cartage company in Lemont, Illinois, Vito directed Arias to clean the premises and then to meet him at the Silver Jug. The Silver Jug tavern was located next to the cartage company. According to Arias' testimony, Arias arrived at the Silver Jug tavern shortly before 9 p.m., where he drank beer and played pool. It is unclear as to the number of beers Arias consumed before he left the tavern, but he admitted to having at least three. Veldia and Debra Gaines, who tended bar at the Silver Jug on the evening of the accident, testified that Arias had three beers. However, their stories conflicted as to the number of beers that each served to Arias. There was evidence that the defendant had, in fact, arrived at the tavern earlier than he had claimed in his testimony.
Also in his testimony, Arias said he left the Silver Jug around 11 p.m. and walked to the cartage company yard to pick up one of Cuomo's trucks. He stated he took the truck that evening because he had to pick up some parts for his employer the following morning. Vito Cuomo admitted that Arias was to pick up some materials the next day and took the truck for that purpose. Arias left the company yard with the truck and Carl Durkin, a friend from the Silver Jug to whom he was giving a ride, and proceeded northbound on Lemont Road.
Thomas Marrs testified on behalf of the plaintiff. He stated that he was driving a vehicle on Bluff Road waiting to turn north onto Lemont Road when Arias drove past. A blue automobile followed Arias at a close distance, and Marrs waited for it to pass before he proceeded onto Lemont Road. Marrs said that he maintained a two-car-length distance from the blue vehicle and the defendant's truck moved progressively further away.
At this point, Lemont Road was a two-lane highway, and it had an uphill grade which leveled out near the scene of the accident. The defendant's truck was about two blocks ahead of Marrs when it reached the level portion of the road. Marrs stated that the defendant's truck swerved to the left just prior to the collision. He saw one headlight from Buczyna's oncoming vehicle, and observed the taillights of the truck rotate in a clockwise fashion and slide off towards the right.
The other occurrence witness, Roger Beck, testified that he had approached the two vehicles from the northbound lane and saw the headlights of Cuomo's truck move from horizontal to vertical. However, he said he was too far away to see where the center lines were at the point of the collision and could not tell if the vehicles were in their proper lanes. Douglas Miller, an evidence technician with the Du Page County sheriff's police, testified that when he arrived at the scene of the accident, which was at approximately 11:40 p.m., Buczyna's car was in the southbound lane facing east. He said that the front wheels of the Buczyna vehicle were inches from the center line and that the vast majority of debris was in the southbound lane. Miller observed no skid marks at the scene, nor any gouge or scrape marks.
The plaintiff also called three members of the Lemont fire department, April Stech, Michael Smollen and Richard Lee, who treated Arias and transported him to the hospital. April Stech testified that when she arrived at the scene Arias was flailing his arms and shouting that he did not want to be touched. She noticed that, as Arias spoke, his voice would start out very loud and would just drop off. She said that Arias smelled like beer, and that it was her opinion that Arias was intoxicated. She admitted that she could not be 100% certain that Arias was intoxicated, and that the symptoms could be indicative of a head injury. On redirect, she testified that his pupil reactivity indicated that if he had a head injury it was not severe.
Paramedic Michael Smollen testified that Arias was very unruly while being transported to the hospital. He stated that Arias would yell and then suddenly his voice would drop and become very soft. He detected the smell of alcohol, and it was his opinion that Arias was drunk. Smollen based his opinion on three factors: (1) the odor of alcohol; (2) the way Arias was acting; and (3) the way he was talking. Smollen admitted that it was equally possible that Arias could have been reacting to a head injury, but he did not believe that Arias was suffering from a head injury.
Richard Lee also gave his opinion that Arias was intoxicated. Lee admitted on cross-examination that the smell of alcohol and unruly conduct do not necessarily mean an individual is intoxicated; his statement that Arias was intoxicated, he stated, was "just a guess." However, Lee later explained that by use of the word guess, he meant that it was his opinion that Arias was intoxicated.
The plaintiff also called Keith Larsen to testify. Larsen was a deputy sheriff with the Du Page County sheriff's police department, and had been dispatched to the scene on the night of the accident. He testified primarily regarding the procedures he followed in the investigation and what he had observed at the scene. Additionally, Larsen testified about his observations while questioning Arias at the hospital approximately 90 minutes after the accident. In his testimony, Larsen stated that he did not think Arias was intoxicated but that he had made inconsistent statements.
Dr. Bruce Johnson, a doctor who treated Arias at Good Samaritan Hospital, testified that he had no independent recollection of Arias' treatment or condition, but there was nothing in the hospital or medical records that indicated that Arias was disorientated or intoxicated.
The defendants initially contend that the testimony of Deputy Larsen at the trial removed any bar imposed by the Dead Man's Act (Ill. Rev. Stat. 1983, ch. 110, par. 8-201), which prevented Arias from testifying concerning the accident. They claim that certain facts about the accident were elicited during plaintiff's examination of Larsen regarding Larsen's observations made during his conversation with Arias at the hospital and that this removed the bar of the statute. However, the plaintiff, on the other hand, claims that Larsen's testimony did not elicit facts and circumstances of the accident; rather, she asserts Larsen's testimony was merely intended to show and did show Arias to be in a confused and disorientated state of mind, and was evidence of his intoxicated state.
During direct examination, Larsen testified that Arias answered his questions inconsistently. Larsen stated that Arias was confused. However, when defense counsel inquired into the specific matters of confusion on cross-examination, Larsen stated that Arias was confused only about the use of the words "turn" and "pull"; the plaintiff attempted to rehabilitate the witness on redirect by drawing his attention to his prior statement which indicated confusion about additional matters. When plaintiff's counsel attempted to direct the witness' attention to his prior statement, the following exchange took place.
"[PLAINTIFF'S COUNSEL]: There was something a little more confusing than the words turned and pulled in the hospital when you talked to Mr. Arias, wasn't there?
[LARSEN]: I don't believe so.
[PLAINTIFF'S COUNSEL]: Well, didn't he at first say something ...