James v. Wicker

• Decision Date: 31 March 1941
• Docket Number: Gen. No. 41497.
• Parties: JAMES v. WICKER ET AL.
• Court: United States Appellate Court of Illinois

309 Ill.App. 397

33 N.E.2d 169

JAMES

v.WICKER ET AL.

Gen. No. 41497.

Appellate Court of Illinois, First District, First Division.

March 31, 1941.

Appeal from Circuit Court, Cook County; William F. Borders, Judge.

Action by Devota V. James, also known as Peggy Ouellette, against Louis Wicker and others for injuries resulting from alleged violation of the Dram Shop Act. There was a jury trial and a verdict and judgment in plaintiff's favor for $15,000. From a judgment sustaining a motion to vacate the judgment and for judgment notwithstanding the verdict, plaintiff appeals.

Defendant Newton Grey died on January 21, 1941.

Judgment affirmed nunc pro tunc as of January 20, 1941. Jerome B. Read and Richard G. Finn, both of Chicago, for appellant.

Lord, Bissell & Kadyk, of Chicago, for appellees.

O'CONNOR, Presiding Justice.

Plaintiff brought an action against the tavern keeper and the owner of the property in which the tavern was being conducted to recover damages for personal injuries claiming that defendants were liable under the provisions of § 14 of the Dram Shop act. [Ill.Rev.Stats.1939, ch. 43, par. 135, § 14.] There was a jury trial and a verdict and judgment in plaintiff's favor for $15,000. Afterward defendants' motion to vacate the judgment and for judgment notwithstanding the verdict was allowed and plaintiff appeals.

The record discloses that at about 10 o'clock at night of August 21, 1937, plaintiff, Peggy Ouellette and her friend, Phyllis Steponaitis, who were both employed as masseuses at the Viking Health Institute, located in the Loop on North State street, in Chicago, went in an automobile with their friends, Emmet Laughlin and Mr. Dwyer (whom they had met on prior occasions), to defendant Wicker's tavern located at 2204 S. Pulaski road--at the intersection of Ogden avenue, S. Pulaski road and Cermak road, in Chicago--where they remained until about 2:30 o'clock in the morning drinking and dancing. It was raining at the time and plaintiff and Laughlin went to the automobile which was parked nearby, drove in front of the tavern, picked up the other couple and then started up Ogden avenue in a northeasterly direction toward plaintiff's home. When they had proceeded about 300 yards, the automobile ran head-on into an iron post which was located in the street intersection and plaintiff was severely injured--in fact each of the four was injured and taken to nearby hospitals. The post was quite high and was used to support wires in connection with the operation of street cars on Ogden avenue and Cermak road.

The two women gave testimony to the effect that while they and their escorts were at the tavern each drank considerable intoxicating liquor; that Laughlin, the driver of the automobile, became so intoxicated that he was unable to dance properly and stuttered although he did not do so when sober. Neither of the two men testified and a police officer, called by defendants, testified he had read in a newspaper that Laughlin, who was also a police officer, died about six months before the trial. Why the other man, Dwyer, was not called does not appear and no mention is made of this fact in the record or the briefs.

Plaintiff testified that at the time of the trial, February, 1940, she was 24 years old and had been a masseuse about three and one-half years; that she had been employed at the Viking Institute about seven or eight months before the accident and was in charge of the place at the time; that shortly before the night in question she had been in a hospital where she was operated for appendicitis and had been back at her work about one and a half weeks; that she and her friend, Phyllis Steponaitis had known the two men for a short time and had been out with them before the evening in question; that while they were at the tavern they danced and had several drinks of intoxicating liquor and at times the men went to another table in the tavern “and I know they had a shot glass in front of them”; that during the evening she had “five or six [drinks--‘Scotch and soda,’ ‘Tom Collins' and ‘sloe gin’] maybe more or less, I don't know”; that shortly before they left the tavern “With the drinks I had and not feeling well it made me quite groggy and sleepy. * * * I tried to dance with Mr. Laughlin and could not. He seemed to be on my feet more than on his own and he also stuttered * * * and either Phyllis or myself would have to finish his sentences”; that at the time they left the tavern “I was feeling a little bit lit and sleepy.”

Phyllis Steponaitis, called by plaintiff, testified she was a masseuse and had been working at the Viking Health Institute six or seven months before the accident. As to what took place at the tavern she testified she knew the master of ceremonies there; that when she and the others got to the tavern they had drinks at the table; “I drank Scotch and soda and the boys had ale”; that from time to time they got up to dance; that during the course of the evening “I don't know how many drinks I had, but I would say about ten”; that sometimes the two men went to other tables. “All I know is that they had shot glasses and I do not know if it was ginger ale or gin or what it was”; that the men had two or three drinks at other tables; that as the evening went on “the men were intoxicated. * * * Laughlin was boisterous. * * * He stuttered terribly. He stutters when he gets drunk. * * * I felt pretty happy myself, and Peggy did too”; that when they left the tavern Laughlin was intoxicated. On cross-examination she testified she would not say that Peggy and herself were intoxicated but the drinks they had “just makes you forget all your troubles. In other words, we had a pleasant glow at that point.”

Plaintiff in her complaint alleged she was at all times in the exercise of due care and caution for her own safety. This was denied by defendants in their answers. At plaintiff's request the court instructed the jury that the expression “proximate cause” means “the negligent act or omission” which produced the injury but need not be the sole cause nor the last nor the nearest cause; that to make the negligent act the proximate cause of the injury it was not necessary that the particular injury could reasonably have been foreseen; that it was sufficient that “the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result as a natural and probable consequence of his negligence, if any such negligence is shown by a preponderance of the evidence.” Another instruction given at plaintiff's request told the jury if they found from a preponderance of the evidence that plaintiff was injured as a result of the intoxication of Laughlin, (if they believed he became intoxicated by reason of liquor sold to him by defendant, Wicker, and the intoxication was the proximate cause of plaintiff's injuries) the fact that plaintiff may also have been intoxicated at the time would not be a defense unless the jury believed that her intoxication proximately contributed to bring about the accident in question.

At defendants' request the jury were told that if they found from a preponderance of the evidence the intoxication, if any, of Laughlin, was not the proximate cause of the accident but that the sole cause was the unfavorable weather condition and visibility or that the street car company was negligent in maintaining the post in the street, their verdict should be for defendants. And in two other instructions given at defendants' request, the jury were told that if plaintiff failed to exercise due care and caution for her own safety when she entered the automobile knowing Laughlin was intoxicated, they should find defendants not guilty and that if the jury found from a preponderance of the evidence that plaintiff was intoxicated and that her intoxication proximately contributed to her injury, she could not recover. Another instruction was to the effect that plaintiff could not recover unless she was in the exercise of due care and caution for her own safety. Therefore, it is clear that the case was submitted to the jury on the theory that plaintiff could not recover unless she were in the exercise of due care and caution for her own safety.

In this court counsel for plaintiff say: “The facts in the case at bar raise squarely for the first time in an injury case in Illinois the question of contributory negligence as a defense” to an action to recover civil damages under Section 14 of the Dram Shop Act and contend that contributory negligence is not a defense to such an action.

From the complaint and the instructions it is clear that the case was tried on the theory that...