Davis v. Oettle

• Decision Date: 26 September 1963
• Docket Number: No. 63-F-22,63-F-22
• Citation: 43 Ill.App.2d 149,193 N.E.2d 111
• Parties: Patsy Ann Barnett DAVIS, Plaintiff-Appellee, v. Gloria Neff OETTLE, d/b/a Friendly Tavern, Defendant-Appellant, Frank Emery and Floyd Hauhe, d/b/a Floyd Hauhe Auto Company, Defendants.
• Court: United States Appellate Court of Illinois

Page 111

193 N.E.2d 111

43 Ill.App.2d 149

Patsy Ann Barnett DAVIS, Plaintiff-Appellee, v. Gloria Neff OETTLE, d/b/a Friendly Tavern, Defendant-Appellant Frank Emery and Floyd Hauhe, d/b/a Floyd Hauhe Auto Company Defendants.

No. 63-F-22.

Appellate Court of Illinois, Fourth District.

Sept. 26, 1963.

Rehearing Denied Oct. 24, 1963.

Calvo & Allen, Granite City, John T. Roach, Alton, Wagner, Conner, Ferguson, Bertrand & Baker, E. St. Louis, Mullin, Rosenbloom & Zun, Chicago, of counsel, for appellant.

Wiseman & Hallett, Alton, for appellee.

CULBERTSON, Presiding Justice.

This is an appeal from the City Court of Alton, Illinois. The action originated as the result of an automobile accident resulting in personal injuries to Appellee, hereinafter called plaintiff, Patsy Ann Barnett Davis, by reason of a collision with a vehicle operated by defendant, Frank Emery. Plaintiff's complaint alleged that Frank Emery was guilty of negligence and was also intoxicated at the time of the accident and by reason thereof, claimed damages as against Frank Emery, individually and also as against the defendant appellant, Gloria Neff Oettle, d/b/a Friendly Tavern. A third cause of action was asserted against defendant, Floyd Hauhe, d/b/a Floyd Hauhe Auto Company, predicated on the theory that there were certain defects in the motor vehicle which were causative factors of the accident and the injury. The complaint in the dram shop cause of action asserted that Emery became intoxicated from the purchase of beer from defendant, Gloria Neff Oettle, and asserted that the intoxication was the causative factor in the accident. Plaintiff was severely injured, disfigured, and lost her right eye. As the result of the trial by jury as against all three defendants on the counts referred to, the jury found defendant Frank Emery guilty and assessed damages as against him in the sum of $65,000.00 and costs. He does not appeal from that judgment. A second verdict found in favor of Floyd Hauhe, d/b/a Floyd Hauhe Auto Company and as against the plaintiff. A third verdict which involved Gloria Neff Oettle, d/b/a Friendly Tavern, found in her favor and as against the plaintiff.

A motion for judgment notwithstanding the verdict was made on behalf of plaintiff in the matter of the verdict in favor of defendant, Gloria Neff Oettle, and the Trial Court, after allowing the judgment notwithstanding the verdict, directed the cause to be set for hearing before a jury on the question of damages. An alternative motion for a new trial was filed at the time of the filing of the motion for judgment notwithstanding verdict, but for some reason, the Trial Court took no action on the alternative motion until after appellant had filed notice of appeal from the judgment notwithstanding the verdict, on July 27, 1962. On September 6, 1962, the Trial Court, apparently attempting to rectify the omission to rule upon the alternative motion for new trial, entered an additional order conditionally allowing plaintiff's alternative motion for a new trial in case the judgment notwithstanding the verdict should be set aside, reversed, or modified. It is contended that such action came after the filing of the notice of appeal and after the Trial Court had lost jurisdiction of the cause before it.

In the trial there was specific evidence showing that defendant, Frank Emery, on the afternoon of July 30, 1960, after he had purchased a new automobile, drove to the tavern of the defendant, Gloria Neff Oettle, and drank some beer. He stated that he had only one beer and was not intoxicated at that time. The fact that he consumed some beer was corroborated by other witnesses....