Douglas v. Athens Mkt. Corp.

Decision Date30 June 1943
Docket NumberGen. No. 42499.
Citation49 N.E.2d 834,320 Ill.App. 40
PartiesDOUGLAS ET AL. v. ATHENS MARKET CORPORATION ET AL.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; E. I. Frankhauser, Judge.

Action by Alvin Douglas and others against the Athens Market Corporation and another for injuries suffered while in tavern owned and operated by the respective defendants. From an adverse judgment, defendants appeal. Thomas Burget is appellee.

Reversed and remanded with directions.

KILEY, J., dissenting. Lord, Bissell & Kadyk, of Chicago, for Chicago T. & T. Co.

Samuel A. Strauss, of Chicago (Leonard F. Martin, Bruce S. Parkhill, and Gaynor K. Rutherford, all of Chicago, of counsel), for Athens Market Corporation.

H. H. Patterson and George W. Hansen, both of Chicago (Edmund C. Maurer, of Chicago, of counsel), for appellee.

BURKE, Presiding Justice.

In a complaint filed in the Superior Court of Cook County, Alvin Douglas, Thomas Burget, Willie Burget, Maybelle Burget, Ross Burget, Carolyn Douglas and Dolores Douglas, a minor by Carolyn Douglas, her mother and next friend, sought to recover damages under the Illinois Liquor Control Act for personal injuries suffered by Thomas Burget and Alvin Douglas, naming the Athens Market Corporation and Chicago Title & Trust Company, a corporation, as defendants. On motion of plaintiffs the case was dismissed with prejudice as to all plaintiffs except Alvin Douglas and Thomas Burget. Issue was joined and the case was tried before the court and a jury, resulting in a verdict against both defendants in favor of Thomas Burget for $20,000 and in favor of both defendants and against Alvin Douglas. The ruling on the motion by the defendants for a directed verdict was reserved. Motions by the defendants for judgment notwithstanding the verdict and for a new trial were denied and judgment was entered on the verdict, to reverse which this appeal is prosecuted by defendants. No appeal has been taken by Alvin Douglas. For convenience, we will refer to Thomas Burget as the plaintiff.

The first criticism leveled at the judgment is that the trial court erred in refusing to direct a verdict for defendants and in refusing to enter a judgment in their favor non obstante veredicto. They assert that plaintiff was guilty of contributory negligence as a matter of law in purchasing liquor which contributed to cause the intoxication of his alleged assailant. Plaintiff maintains that he was not guilty of contributory negligence as a matter of law and that the question was properly left to the jury. We are, therefore, confronted with the question whether the evidence, giving plaintiff the benefit of all facts proved and all just inferences therefrom, presented an issue of fact for the jury. On Saturday evening, March 18, 1939, an affray took place in a tavern located at the northwest corner of Harrison and Halsted Streets, Chicago, during the course of which plaintiff was struck in the left eye, necessitating its removal the following Monday morning. The tavern was operated by the Athens Market Corporation and the Chicago Title & Trust Company was the owner and lessor of the premises. Harrison Street runs in an easterly and westerly direction and Halsted Street runs in a northerly and southerly direction At the time of the occurrence plaintiff was living at the Lake Menard Hotel, 336 North Menard Avenue, Chicago, and was engaged in the business of hauling long distance freight for the Mutual Trucking Company in trucks leased by him to that company. His garage was located on the south side of Harrison Street, a few doors east of Halsted Street. The tavern was located just west of a grocery and market, which was operated by the Athens Market Corporation and was separated from the market by a glass partition. The tavern had two doors opening on Harrison Street, one being at the east and the other at the west end of the bar. The bar ran east and west along the south, or Harrison Street, side of the tavern. Along the west side of the tavern were three or four booths with hooks on the partitions between them to hang coats. The tavern also served meals and in the center of the room were some tables. On the north side of the room a swinging door opened into the kitchen. At the time of the trial plaintiff was 31 years of age. Plaintiff introduced six witnesses, namely, James Humphreys, a safety inspector of trucks for Midwest Haulers, Inc., and Mutual Trucking Company, who lived at the same hotel as plaintiff, Arthur Scott Groves, a truck dispatcher for the Midwest Haulers, Inc., and Mutual Trucking Company, Alvin Douglas, a truck driver for Mutual Trucking Company, two doctors and himself. Seven witnesses testified on behalf of defendants, namely, Frederick Julian, a court reporter, Tom Salapatas, a fruit and vegetable salesman, Gus Manos, a waiter and bartender at the tavern, Nick Psaltis, a waiter in the dining room at the tavern and also a cook in the kitchen, Thomas Sackellson, referred to in the testimony as Tom, or Tom the Greek, the assailant, who worked at a fruit auction house, John Rogers, a real estate agent, and Nicholas Choconas, secretary of the Athens Market Corporation, and who managed the grocery store.

Plaintiff testified that he was in the tavern nearly every day that he was in town; that he had his meals there “most every day”; that the drivers and mechanics from the garage ate there; that on the day of the occurrence he came to the tavern about 11 a. m.; that he had a cup of coffee and remained there about 15 minutes; that he then went to his garage to supervise the servicing of trucks; that he was not due to go out on a trip until Sunday night; that he returned to the tavern about 3 o'clock in the afternoon; that he ate there; that other truck drivers were there and some of them cashed their checks there. He did not recall whether anyone went with him to the tavern, but said Humphreys was there when he went in, and that later Douglas came in and joined plaintiff, Humphreys and a couple of truck drivers at the bar. Later Groves joined them and about 5:30 or 6 o'clock Tom Sackellson came in with his sister and brother-in-law. Plaintiff had known Sackellson before, having frequently seen him in the tavern. Humphreys also knew him. Neither Douglas or Groves had known him previously. They were all drinking beer and whiskey and each took his turn buying a round of drinks for the group. Witness testified that he, Douglas, Sackellson and the others were sitting and drinking together as long as witness was there, all buying a round of drinks for the others; that Sackellson bought drinks for him and that he (plaintiff) bought a round of drinks; that Tom drank beer and had a couple of shots of whiskey; that Tom had several drinks in the tavern that night; that he did not recall how many drinks he saw sold to him or taken by Tom while he (plaintiff) was there “because we were buying back and forth”. Witness further testified that he left the tavern about 7 o'clock, or shortly after that, and went back to his garage where he got some trucks ready to go out that night, and that he left Tom and the other men at the bar. Witness stated that Tom became intoxicated; that it was between 6 and 7 o'clock when he first discovered that Tom was intoxicated; that Tom showed it by the loud tone of his voice and actions. Witness testified that he was not getting drunk, but admitted in his deposition, taken on October 23, 1939, he had answered that at the time he noticed Tom getting drunk we was all getting drunk”; that he did not see Tom or the other men until he came back to the tavern at about 10:00 p. m., approximately three hours later; that he knew nothing about an altercation between Tom and the other truck drivers that had occurred after he had left the tavern. Witness stated that he returned to the tavern about 10:00 p. m. and that he was assaulted two or three minutes after he came in. He had just gone back to the rear of the tavern near the kitchen to hang up his coat, when Tom, with several men following him, rushed in the door. Tom had a bottle in his hand and hit Douglas over the head and came directly at plaintiff and struck him with the bottle which was then broken and plaintiff's eye was badly cut. Plaintiff was knocked to the floor and crawled into the kitchen where one of the cooks gave him a towel to hold over his eye. Plaintiff remained conscious, but after he was hit did not see any of the fighting that went on in the tavern. He was taken in a cab to the West Side Hospital. Humphreys and Tom Sackellson went with him in the cab. From there he was taken to the County Hospital. The next day, Sunday, his eye was examined and on Monday the eye was removed. He remained in the hospital 16 days.

There is a conflict in the testimony as to the exact time of the occurrence. Plaintiff testified that he returned to the tavern between 9 and 10 o'clock, but did not recall what time the fight broke out but said it was not more than two or three minutes after he returned to the tavern. Humphreys and Groves, testifying for plaintiff, said the fight happened around 10 o'clock. Defendants' witness Manos, the bartender, says it was about five or ten minutes after 11:00 o'clock; Psaltis, the waiter, that it was around 11 or 11:30; Sackellson, the alleged assailant, testified he did not know exactly but would say it was about 11:15; Salapatas, who came in around 10 or 10:30 with Rogers and a Mr. Kokinos to eat supper and were sitting at the table where they were waiting to be served their meals, thought it happened around 11 o'clock. Plaintiff had no drinks in the two or three minutes that elapsed from the time he came in until he was hit. Tom was at the bar drinking practically all of the time from 7:00 p. m. on until plaintiff was injured, according to Humphreys, Groves and Douglas. A bartender at the tavern continued to sell liquor to Tom and the...

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    • United States
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