Hurley v. Phillips

• Decision Date: 31 December 1964
• Docket Number: Gen. No. 49857
• Citation: 54 Ill.App.2d 386,203 N.E.2d 431
• Parties: Clory May HURLEY and Betty Lee Maxwell, Plaintiffs-Appellants, v. Cyprian PHILLIPS, d/b/a Zips Liquors, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 431

203 N.E.2d 431

54 Ill.App.2d 386

Clory May HURLEY and Betty Lee Maxwell, Plaintiffs-Appellants, v. Cyprian PHILLIPS, d/b/a Zips Liquors, Defendant-Appellee.

Gen. No. 49857.

Appellate Court of Illinois, First District, Third Division.

Dec. 31, 1964.

Marvin A. Marder and Harold A. Liebenson, Chicago, for appellants.

Heineke, Conklin & Schrader, Chicago, William H. Schrader, Edwin A. Strugala, Chicago, of counsel, for appellee.

SCHWARTZ, Presiding Justice.

This is an appeal from a judgment on a verdict directed by the court in favor of defendant in a dramshop case. The issue involved is whether the principle of judicial admission may be applied against plaintiffs.

Plaintiffs were passengers in an automobile driven by one Burdell Cody. An accident occurred as the result of Cody's driving the car into the concrete abutment of a viaduct, and plaintiffs were injured. They sued Cody, the Chicago Transit Authority, and Cyprian Phillips, the appellee. The suit was dismissed as to Cody and the C.T.A.

Plaintiffs, who are sisters, worked for Swift and Company. After they finished working on November 10, 1955, they went to Zips Tavern at 4107 South Ashland Avenue, Chicago, Illinois, a place commonly patronized by Swift and Company employees. Cody, Max Hunter and Clyde Mitchell, all fellow employees of the plaintiffs, were in the tavern. After staying there about an hour and a half, the plaintiffs left and on the invitation of Cody, got into his car. Cody proceeded to drive from the rear of the tavern to Ashland Avenue and then north to 41st Street, where he stopped for a red light. His car was in the inside lane. While he was waiting for the light to change, a CTA bus drove up, discharged and took on passengers. When the light changed to green, the car proceeded north on Ashland Avenue and the bus followed. Ashland Avenue, a half block north of 41st Street passes under a viaduct and the street narrows between concrete abutments which support the viaduct. One of the plaintiffs said 'Watch out for the bus,' and Cody allegedly looked in the direction of the bus and then swerved his car left into the concrete abutment.

There is a sharp conflict in the evidence as to whether Cody was intoxicated. Several witnesses who had been in the tavern with him testified that he was intoxicated, and there is no doubt that their testimony made a case sufficient to go to the jury. The plaintiffs, however, testified that Cody was sober. Plaintiff Betty Lee Maxwell testified on cross-examination that: 'When I walked out with Cody there didn't seem like anything was wrong with him. He seemed all right to me. To me he was sober.' Plaintiff Clory Mae Hurley testified on cross-examination: 'When I talked to him [Burdell Cody in the tavern] he spoke plainly. When we got in the car as far as I know he drove all right. He drove up to the stop light and stopped. He made a smooth start away from the stop light. I can't remember if it was jerky or anything of the nature of it. I don't remember a jerk or nothing like this. Nothing that Mr. Cody did that afternoon indicated to me that he was anything but sober.'

The question as to whether judicial admission of material facts contained in a party's case constitute surrender of the party's position in the case is not clear. An excellent exposition of this doctrine is contained in McCormack v. Haan, 23 Ill.App.2d 87, at p. 95, 161 N.E.2d 599, at p. 603:

'If a party testifies deliberately to a concrete fact within his peculiar knowledge, not a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case, recent Illinois decisions hold that his adversary is entitled to hold him to it as an informal judicial admission. The court may permit him to withdraw upon reasonable explanation of it as due to a mistake, or may allow him to have the benefit of other evidence explaining it as a mistake. However, in the absence of withdrawal, modification or explanation, such a party cannot have the benefit of other evidence tending to falsify it. Huber v. Black & White Cab Co., 18 Ill.App.2d 186, 151 N.E.2d 641; Tennes v. Tennes, 320 Ill.App. 19, 50 N.E.2d 132; annotation, 169 A.L.R. 798; Wigmore on Evidence (3rd Ed.) sec. 2594a.'

The doctrine was applied by the Appellate Court in that case, but the Supreme Court reversed (20 Ill.2d 75, at p. 78, 169 N.E.2d 239, at p. 240). The court said:

'Of course a party may, by his own testimony, conclusively bar his claim or his defense. But a determination that he has done so depends upon an evaluation of all of his testimony, and not just a part of it. It depends, too, upon an appraisal of his testimony in the light of the testimony of the other witnesses and a consideration of their respective opportunities to observe the facts about which they tes...