Krepfl v. Burke

• Decision Date: 19 November 1974
• Docket Number: No. 59717,59717
• Citation: 321 N.E.2d 30,24 Ill.App.3d 173
• Parties: Diane KREPFL, Administrator of the Estate of Carl W. Krepfl, Deceased, and Diane Krepfl, Plaintiff-Appellee, v. Len W. BURKE et al., Defendants, v. Adrian D. NORTHCUTT et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 30

321 N.E.2d 30

24 Ill.App.3d 173

Diane KREPFL, Administrator of the Estate of Carl W. Krepfl, Deceased, and Diane Krepfl, Plaintiff-Appellee, v. Len W. BURKE et al., Defendants, v. Adrian D. NORTHCUTT et al., Defendants-Appellants.

No. 59717.

Appellate Court of Illinois, First District, Second Division.

Nov. 19, 1974.

John Fako, Jr., McKinley, Price & Fako, Chicago (Edwin A. Strugala, Chicago, of counsel), for defendant-appellant, Northcutt.

John C. Healy, Stanton & Healy, Chicago (Edwin A. Strugala, Chicago, of counsel), for defendant-appellant, Neagles.

Lane, Falasz, Pollman & Munday, Chicago (Thomas L. Trinley, Chicago, of counsel), for plaintiff-appellee.

DOWNING, Justice.

This action was brought against multiple defendants in the court below. The first count, under the Dram Shop Act (Ill.Rev.Stat.1967, ch. 43, par. 94 et seq.), sought to recover for plaintiff, Diane Krepfl (hereinafter plaintiff), loss of means of support of her husband, Carl Krepfl, who died on June 16, 1968, as a result of injuries sustained in an automobile accident. The second count sought to recover damages for the wrongful death of plaintiff's deceased husband.

At the close of plaintiff's evidence in the trial court, count two of the complaint against the operator and owner of the automobile which struck Carl Krepfl was voluntarily nonsuited by the plaintiff. Further, at the close of plaintiff's evidence, a directed verdict was entered in favor of Len W. Burke, a defendant under count one of the complaint.

Regarding the remaining defendants under count one, William R. Neagle and Lucille E. Neagle, owners and operators of the Wil-Lu Inn, and Adrian D. Northcutt, owner and operator of the Turf & Twig, the jury returned a verdict against them, and in favor of plaintiff, in the sum of $65,000. The judgment thereon was entered by the trial judge, as reduced by the statute, in the amount of $20,000.

Defendants appeal from the verdict and judgment, complaining that the trial court erred in denying their motion for a directed verdict made at the close of plaintiff's case and again at the close of all the evidence, and in denying their post-trial motion for judgment Non obstante veredicto or, in the alternative, for a new trial.

Plaintiff's decedent, Carl Krepfl, died on June 16, 1968, at age 33, approximately six months after the two had been married. Both plaintiff and Carl had, earlier in their lives, been patients in Elgin State Hospital. As of June 15, 1968, plaintiff and Carl were living at the Clearview Motel in Wheeling, Illinois, immediately next door to the Wil-Lu Inn, a tavern. At the time, Carl worked as a part-time handyman at a building supply company, earning $2.00 per hour, and had held that position since March of 1968; prior to that, he had been out of work most of his life. Plaintiff held a job at a local restaurant, and she and Carl shared living expenses, Carl paying for the rent of approximately $42 per week and plaintiff paying for the food for the couple.

Regarding the events and circumstances surrounding the accident which led to Carl Krepfl's death, the Wheeling Police Department, by bulletin, had requested taverns in the area near where plaintiff and her husband lived not to serve liquor to Carl Krepfl, apparently because he became troublesome when intoxicated. On the evening of June 15, 1968 (a Saturday), Carl returned from work to the Krepfl's motel room at about 4:30 P.M., and, according to plaintiff's testimony, he appeared to her to already have been drinking. He immediately left the room to go next door to the Wil-Lu Inn, owned and operated by defendants Neagle, and when he returned to the room at about 5:00 P.M., he appeared to plaintiff to be somewhat intoxicated.

The couple changed clothes and went next door to the Wil-Lu Inn to eat supper. Upon their arrival, Carl ordered himself a drink, and, when he asked plaintiff what she wanted to drink, plaintiff indicated that she would rather have a Coke. According to plaintiff, Carl said, 'Well, drink something better than a Coke.' Plaintiff was served a glass of Mogen David wine from which she had one or two sips.

The couple stayed at the Wil-Lu Inn until approximately 9:00 P.M., during which time Carl had about three beers and two shots of whiskey; plaintiff had but the few sips of Mogen David wine. While at the Wil-Lu Inn, the couple was served drinks by 'Little Willy.' At one point during their stay at the Wil-Lu, plaintiff testified, she asked Little Willy not to serve Carl any longer, to which Little Willy responded, 'What's the difference?' After plaintiff had said that to Little Willy, he said that he was going to give Carl some more to drink, which he later did. At another point during the time at the Wil-Lu, plaintiff testified, she asked Carl not to drink any more, to which he replied, 'Who's boss?' Plaintiff responded, 'You are, yes.' Plaintiff testified that Carl would not listen to her and that he became angry, and further, that because Carl wanted his own way, plaintiff stated that she felt that she should 'Let him have his own way. I didn't want to fight with him.'

At about 9:00 P.M. when the couple left the Wil-Lu, Carl told plaintiff that they were going to the Hilltop Inn, a tavern owned by Len W. Burke, located next door to the Wil-Lu. They had nothing to drink at the Hilltop. Plaintiff testified that Burke grabbed her and Carl and took them out the front door of the Hilltop immediately upon their entry; Burke testified that the couple simply came in and left within a few minutes.

After having left the Hilltop, plaintiff and Carl returned to the Wil-Lu, where they stayed for about 30 minutes. Carl met a friend at the Wil-Lu and had another shot and beer. At approximately 10:00 P.M., plaintiff, Carl, and the friend, whom plaintiff could not identify, left the Wil-Lu; they obtained a cab and the friend was given a ride to his home some miles away.

The couple next went to the Turf & Twig on Milwaukee Avenue in Wheeling, an establishment owned and operated by defendant Northcutt. At the bar, Carl ordered himself a martini on the rocks, and he ordered another Mogen David for plaintiff; she had one or two sips of it. Carl was getting a little intoxicated, and he left his seat and wanted to dance. Plaintiff told him to sit down because he was 'all over the place'; he continued to dance by himself. When the band stopped playing, Carl gave plaintiff a quarter with which to pay the jukebox, which she did.

Eventually, the bartender at the Turf & Twig refused to serve Carl, and he went next door to the Bavarian Lodge to borrow some money from Hans Ammelounx, the proprietor, leaving plaintiff for approximately 20 minutes at the Turf & Twig. Carl was not served at the Bavarian Lodge. Upon his return, he said, 'Let's go home,' and the couple left the Turf & Twig at approximately 11:00 P.M. As they walked north along Milwaukee Avenue, Carl was behind plaintiff. After a time, Carl decided to go back to the Bavarian Lodge to get some cigarettes; plaintiff continued walking along Milwaukee Avenue, by herself, on her way back to the motel room. She walked for about five minutes before crossing Milwaukee to get back to the motel. She did not see Carl Krepfl until the next morning in the hospital.

Carl spent only a few moments at the Bavarian Lodge, and after he had spoken with Hans Ammelounx, he walked out of the Lodge and began to cross Milwaukee Avenue, a four-lane highway having a 50 mile-per-hour speed limit at that point. There were no stop signs, traffic signals, or street lights in the immediate vicinity. It was very dark. The motor vehicle which struck Carl Krepfl was northbound in the outer northbound lane of traffic, and the auto's driver testified that just before impact he saw a figure, staggering and coming from his left, turn in front of his auto. Carl Krepfl died the next morning at 5:45 A.M.

The issues presented for review are:

(1) whether plaintiff was guilty of complicity with Carl Krepfl as a matter of law and whether the trial court erred in refusing to direct a verdict in defendants' favor and in refusing to enter a judgment Non obstante veredicto;

(2) whether the trial court committed reversible error in recalling the jury after the case had been committed to its deliberation to correct one word mistakenly included in a particular instruction; and

(3) whether the damamges awarded to plaintiff by the jury were contrary to the evidence presented.

I.

Regarding the first issue on appeal, defendants contend that where a party seeking to recover under the Dram Shop Act has contributed to the intoxication of the person whose intoxication caused the party's injury, that party is guilty of complicity with the intoxicated person, and, thus, is not an innocent suitor and may not recover under the Act ¹. Defendants urge that plaintiff's actions in accompanying Carl Krepfl on a tour of taverns on the night of June 15, 1968 evidenced, as a matter of law, that plaintiff was guilty of complicity and was barred from recovery thereby. Therefore, defendants conclude, the trial court erred in refusing to grant their motion for a directed verdict and in refusing to enter a judgment Non obstante veredicto in their favor.

Section 14 of the Dram Shop Act, which delineated liability in the instant matter (Ill.Rev.Stat.1967, ch. 43, par. 135), reads in pertinent part:

'Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part, of such person. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.'

Further, the standards which guide the courts of this State with respect to the direction of verdicts and the...