Lester v. Bugni

• Citation: 44 N.E.2d 68,316 Ill.App. 19
• Decision Date: 06 October 1942
• Docket Number: Gen. No. 9338.
• Parties: LESTER v. BUGNI ET AL.
• Court: United States Appellate Court of Illinois

316 Ill.App. 19

44 N.E.2d 68

LESTER

v.BUGNI ET AL.

Gen. No. 9338.

Appellate Court of Illinois, Third District.

May 20, 1942.

Rehearing Denied Oct. 6, 1942.

Appeal from Circuit Court, County of Macoupin; Victor Hemphill, Judge.

Action by James Lester, a minor, by Troy Lester, his father and next friend, against Peter Bugni, Roy Donelson and Eugene Bates, to recover damages for injuries allegedly sustained by the minor in the overturning of an automobile driven by one who was allegedly intoxicated with liquor sold by Peter Bugni and Roy Donelson. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Snell & Seyfrit, of Carlinville, for appellants.

Jesse Peebles and E. R. Phelps, both of Carlinville, and Mark O. Roberts, of Springfield, for appellee.

RIESS, Justice.

The defendant appellants Peter Bugni and Roy Donelson each operated a tavern in or near Carlinville, Illinois, wherein intoxicating liquors were sold. The defendant appellant Eugene Bates was the owner of the tavern operated by Donelson. Suit had been filed in the Circuit Court of Macoupin County by James Lester, a minor, aged seventeen years, by Troy Lester, his father and next friend, seeking recovery of damages for personal injuries alleged to have been sustained by said minor plaintiff on September 28, 1940. Plaintiff's injuries resulted from the overturning of an automobile owned and operated by one Russell Durham, by whom plaintiff Lester was employed as a farm hand. Durham was alleged to have been intoxicated with liquor sold to him by defendants Bugni and Donelson in their respective taverns on that day which proximately caused such injuries and damage to the plaintiff.

The case was tried by a jury and a verdict was rendered in favor of plaintiff in the sum of $4,250. The court denied defendants' motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial, and judgment was entered on the verdict, from which judgment all of said defendants have perfected their appeal to this court.

From the abstract and record it appears that the facts in the case were substantially as follows: James Lester's home was in Girard, Illinois. On September 26, 1940, he was employed by Russell Durham as a farm hand and was taken to the latter's farm located about fifteen miles northwest of Carlinville and about three miles north of Palmyra, Illinois. On the evening of September 27, Durham's Ford automobile had run out of gasoline about a mile and a half from his home and was left standing on the side of the highway overnight. During the next morning, Durham and Lester shocked beans on the farm and in the afternoon Durham caused Lester to fill a tengallon can with gasoline and take it to the car. Durham, accompanied by Lester, then drove to Carlinville where Durham first obtained an eight dollar parity check from the Farm Office and then went to defendant Peter Bugni's tavern in Carlinville, where he cashed the check.

Lester fixed the time at three o'clock and Durham at four or five o'clock of the afternoon. Durham bought two bottles of beer for himself and Lester which they drank. Lester testified that subsequently Durham played cards with some man who was a stranger to Lester; that this man suggested that the three chip in and buy a quart of wine, which was done. Lester did not drink the wine as he did not like it, and it was consumed by Durham and the third man; that Durham drank more beer and whiskey with other persons but that Lester drank no more intoxicants. Durham and defendant Bugni denied that Durham drank more liquor or that he was intoxicated.

Lester testified that he had asked Durham to take him home, but that Durham refused and pushed him aside; that at about eight o'clock they left Bugni's tavern, and Lester again requested that if Durham would not go home, he take Lester to his home at Girard, but was told that he would do so on the following afternoon. Lester stated that he could not take the Interurban to Girard because he had no money; that Durham drove out of Carlinville to the Silver Moon tavern which was owned and operated by defendant Donelson under a lease from defendant Bates who owned the property, which ownership, leasing and operation is admitted by said defendant. Lester testified that he again asked Durham not to stop at the Silver Moon, but was told that Durham would stop and have another drink; that they arrived there about 8:30 P. M. where Lester said that Durham drank more bottled beer and some whiskey. Others testified to the drinking and to the intoxicated condition of Durham, which was denied by the defendants and certain of their witnesses.

At about 10:30 P. M. Lester again asked Durham about going home which the latter refused to do, whereupon Lester went out to the Durham car and got into the back seat and went to sleep. At midnight, Durham left the tavern, but did not awaken Lester, who testified that he only awakened sufficiently to know that the car was moving and remembered nothing more until after he was in the hospital on the following day. It appears that he slept in the car until the time of the injury.

Durham drove to Palmyra and then over a level black-top State-Aid road known as Emmerson Road running east from Palmyra. At a point a quarter of a mile east, there were railroad tracks running in a northerly and southerly direction across the road. When Durham had reached a point about one block east of the tracks, he turned his car over on the north edge of the highway, so that afterwards the front wheels were facing back in a southerly direction on the north edge of the road. Durham testified that when he crossed the tracks, his front wheels “shimmied” and continued to do so until he turned over when going at a speed of twenty or twenty five miles an hour. No brakes were applied by Durham. He was familiar with the road between Palmyra and his home. Before the car turned over, there had been no conversation between Durham and Lester, who had been sleeping.

Durham testified that on the way into Carlinville that afternoon, he had car trouble due to a short in wires, which he overcame by “jiggling” the wires and again near the Silver Moon tavern, he stopped for twenty or thirty minutes on account of a short circuit in the ignition switch, which he again overcame by “jiggling” the wires; that otherwise the car was in good mechanical order except that the front wheels were loose on that afternoon. He had no other trouble until the time when the car “shimmied” and turned over. He did not remember whether he had a speedometer on the car.

After the car was turned over, Durham went to the home of a Mr. Nevins nearby for help and to assist in moving the injured plaintiff from the car. Marvin Thurston and Duane Mitchell, witnesses, also came by in a car, and the four turned Durham's car back onto its wheels. They then placed Lester in the back seat of Mitchell's car and took him to the Stults Funeral Home, from whence he was taken in an ambulance to the hospital at Carlinville. The witnesses who assisted Durham testified that in their opinion he was intoxicated, basing the same principally on the strong odor of liquor upon his breath and their statements that he staggered. One of the witnesses operated a grocery store near-by and the other was a student who attended Carbondale Normal School. When Durham called at Nevins' home for help, it was about one or one thirty o'clock in the morning.

While it may be conceded that the question of Durham's purchase of liquor and subsequent intoxication was controverted by witnesses for the respective parties, the greater weight of the testimony seems to be that he had drank liquor freely at both taverns and was intoxicated prior to and at the time of plaintiff's injuries.

Plaintiff sustained a fracture of his fifth and sixth cervical vertebrae which caused a paralysis to his right leg and foot, to his right arm and some paralysis in his left leg; a laceration of his ear and some subsequent deformity to the right...