Hill v. Alexander

• Decision Date: 02 February 1944
• Docket Number: Gen. No. 42713.
• Citation: 53 N.E.2d 307,321 Ill.App. 406
• Parties: HILL v. ALEXANDER ET AL.
• Court: United States Appellate Court of Illinois

321 Ill.App. 406

53 N.E.2d 307

HILL

v.ALEXANDER ET AL.

Gen. No. 42713.

Appellate Court of Illinois, First District, Third Division.

Feb. 2, 1944.

Appeal from Superior Court, Cook County; John C. Lewe, Judge.

Action by Norma Hill against Louis Alexander and Frances Terry, doing business as Felix Cocktail Lounge, and others for injuries sustained when person who allegedly had become intoxicated in defendants' tavern caused a door to shut upon and crush plaintiff's hand. Verdict and judgment for plaintiff, and defendants appeal.

Reversed and remanded with directions. Lord, Bissell & Kadyk, of Chicago (Leonard F. Martin, Bruce S. Parkhill, and Harold E. Baily, all of Chicago, of counsel), for appellants.

Clarence M. Dunagan, of Chicago, for appellee.

BURKE, Justice.

A complaint filed in the Superior Court of Cook County on May 9, 1941 by Norma Hill against Louis Alexander and Frances Terry, doing business as Felix Cocktail Lounge, Eleven Eleven Lawrence Corporation and First National Bank of Chicago, individually and as trustee, charges that on or about January 13, 1941 Louis Alexander and Frances Terry, doing business as Felix Cocktail Lounge, operated a tavern at 1101 Lawrence Avenue, Chicago, by and with the consent of Eleven Eleven Lawrence Corporation, owners of the premises; that on that date Louis Alexander and Frances Terry sold or served liquors to one Sol, causing his intoxication in whole or in part; that plaintiff was lawfully upon the premises and was at all times exercising ordinary care for her own safety; that Sol, while intoxicated and as a direct result of the intoxication, walked or staggered through the doors leading to the outside of the cocktail lounge, and as a direct result of the intoxication staggered and fell against the doors of the lounge and did then and there kick loose a door stop which was holding the door open and caused the door to swing shut in and upon the hand of the plaintiff; that as a proximate result plaintiff was greatly hurt, bruised and wounded, and divers bones of her hand and arm were broken, crushed and maimed, and she sustained permanent injuries to various parts of her right hand and right arm, and amputation of the small finger of the right hand, to the damage of plaintiff in the sum of $5,000. The bank, individually and as trustee, was dismissed from the case. The complaint was amended on its face by alleging that the date of the occurrence was January 18, 1941. Defendant answering, admitted ownership of the premises and the sale of alcoholic liquor therein, but denied all other allegations. A trial before the court and a jury resulted in a verdict against defendants for $2,250. Motions for a directed verdict, 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.

Lawrence Avenue runs in an easterly and westerly direction. The tavern is located on the south side of Lawrence Avenue, facing north. The main entrance to the tavern is on Lawrence Avenue. Along the east wall is a row of booths and along the west wall is a 20 foot bar running north and south. The bar does not run all the way up to the north wall. There is a door from the street leading to a small vestibule, and an inside door from the vestibule to the tavern. Both doors opened out. The hinges of the inside door were on the west jamb and when the door was opened it swung in a northwesterly direction. The distance in the vestibule between the outside and inside doors is about five feet, and the distance between the vestibule door and the first booth is about ten feet. The only testimony introduced by plaintiff was that of herself. She testified that she arrived at the tavern about 2 p.m. on Saturday, January 18, 1941, where she met her father. They sat in the second booth from the north end. When she first sat down she observed other patrons at the bar. She testified that as she sat eating lunch she observed a man whom she identified as Sol; that he was eating and drinking; that the bartender poured several drinks of whiskey for him; that Sol got up and walked towards the back and that he “kind of staggered”; that he came back to the bar in a few minutes, sat down and began drinking again; that Sol was rather loud in manner of speech; that after he came back to the bar he had three or four more drinks of whiskey; that she was in the booth with her father for about a half an hour; that then she arose and walked to the music box for the purpose of putting a coin in the slot and playing a record; that the music box was located against the north wall, just west of the vestibule door and on the same side of the tavern as the bar; that it was “right up against the door I came in.” The machine faced south or toward the back of the tavern, and was of the type in which a person first places a coin and then makes a selection. She testified further that as she stood there her left hand was going over the selections on the music box; that she had her fingers over the numbers; that her right hand was on the jamb of the door, with her fingers in the crack between the open door and the jamb; that she stood there with her head bent forward and facing north; that when she entered the tavern the inner door was open; that as she stood in this position Sol came staggering down and started out the door and bumped the door, and as he started to close it he fell back against it, and the first thing she knew her finger was caught in the door; that “This man I know as Sol is not tall nor is he light but he is not fat.” She testified further that after the accident her father came over to see what was wrong; that one of the customers of the tavern accompanied her to the office of Dr. H. C. Warren, located in the same block as the cocktail lounge; that her father did not accompany her to the office of the doctor, and that her father later appeared at the doctor's office. She was in Dr. Warren's office for about 20 minutes. He treated her finger and bandaged it. She saw him on Monday, when he changed the dressing. At his direction she went to the American Hospital Thursday and remained there until the following Monday afternoon. The day after arriving at the hospital her finger was operated on by Dr. Warren and an anesthetic was administered for the operation. She suffered severe pain, which continued for almost two weeks. At the end of that period she went back to work, but only worked two days. Then she was off work for a month. The bandage remained on her finger until May, 1941. Dr. Warren died about six weeks before the trial. She went to his office about three times a week until May. She further testified: “My finger had to be operated on again. It is very sensitive and it has a nail on it that has to be removed. I went to Dr. Warren just three weeks before he died and he told me to come back and he would remove the nail, but before I got a chance to go back he died.” She testified further that at the time of the trial her father was employed in the ship yards at Orange, Texas, where he had been since April, 1942. She stated that when she went to the music box Sol was sitting at the back end of the bar; that after she got to the music box he started to go out; that he was staggering at that time; that he got off his chair and staggered to the front door; that the door was open; that after he went through the door in the vestibule he fell and staggered against the door. Asked: “And his shoulder bumped the door, is that it?” she answered: “Yes”. Asked: “Then what did he do?” she answered: “Then the door started to close and he lost his balance and just kind of fell back against the door and then he straightened up and walked out.” She testified that when Sol fell back against the door he pushed it the rest of the way shut; that Sol then walked out; that she had not seen Sol from the day of the accident up to the time of the trial; that she knew the newsboy; that at the time of the occurrence the newsboy was sitting by a table near the east wall.

Fred Solomon testified on behalf of defendant that he is generally called Sol; that he had been employed for six years in collecting from and repairing music machines, and that at the time of the occurrence he was employed by the man who owned the music machine located in the Felix Cocktail Lounge, where he had occasion to go four or five times a week; that on the day of the occurrence he had occasion to be in the restaurant, which is next door west from and connected with the tavern, around 3 p.m.; that he was in the tavern part approximately three minutes talking to Mr. Terry, father of the defendant Frances Terry. Mr. Terry was the only one behind the bar at the time. Witness further testified that he had something to eat in the restaurant part, which is separate from the tavern; that he drank coffee but had no alcoholic liquor; that he was in the restaurant talking to Miss Frances Terry when the waitress came in and told Miss Terry about the accident; that prior to this time he had neither gone in or out of the front door of the tavern, having entered the premises through the restaurant door; that at the request of Miss Terry he took plaintiff to Dr. Warren's office, returning to the tavern. He testified further that he was sober; that he never drinks whiskey and that he did not observe any one in the tavern talking in a loud voice or who appeared intoxicated. Mr. James Terry, father of Miss Terry, testified on behalf of defendants that at the time of the accident he was the only one tending bar; that the only patrons in the tavern just before the accident were the plaintiff and her father, Mr. Pike; that Mr. Solomon was in the restaurant side at the time of the occurrence; that plaintiff was at the victrola and had her hand against the door which closed; that her father went out the front door on his way home; that the door evidently caught plaintiff's finger...