Nystrom v. Bub

• Decision Date: 16 May 1962
• Docket Number: Gen. No. 11532
• Citation: 184 N.E.2d 273,36 Ill.App.2d 333
• Parties: Raymond NYSTROM, Appellee, v. Al BUB, Mary L. Bub and Edwin J. Faull, Appellants.
• Court: United States Appellate Court of Illinois

Page 273

184 N.E.2d 273

36 Ill.App.2d 333

Raymond NYSTROM, Appellee, v. Al BUB, Mary L. Bub and Edwin J. Faull, Appellants.

Gen. No. 11532.

Appellate Court of Illinois, Second District, Second Division.

May 16, 1962.

Rehearing Denied Aug. 20, 1962.

Moran, Klockau, McCarthy, Schubert & Henss, Rock Island, for appellants.

Don J. McRae, Andrews & Andrews, Kewanee, for appellee.

CROW, Justice.

This action was brought under the statute commonly referred to as the Dram Shop Act: Ch. 43, Ill.Rev.Stats., 1959, par. 135. Count I of the complaint was for alleged injuries to the person of the plaintiff, Raymond Nystrom, as a result of a collision between Nystrom's automobile and one driven by an allegedly intoxicated person, Clifford E. Burroughs. Count II was on behalf of Nystrom's wife and minor children for alleged loss of means of support incurred as a result of the injuries sustained by Raymond Nystrom. The Jury returned verdicts of guilty against the defendant tavern operators Al and Mary Bub, as well as against the defendant property owner, Edwin J. Faull. The Court entered judgments against these defendants on the verdicts for $6000.00 on Count I and $9000.00 on Count II. Subsequently the Court denied the defendants' post-trial motions for judgment notwithstanding the verdicts and for new trial, and this appeal by the defendants results.

The defendants ask that the judgments be reversed, because as a matter of law there was no competent evidence to establish the intoxication of Clifford E. Burroughs, or the cause be reversed and remanded for a new trial for the following reasons, claiming the Court erred

1. In refusing to admit the defendants' expert testimony pertaining to the effect of alcohol upon the human body the various percentages of blood alcohol at which human senses tend to become affected, the elimination rate of alcohol, and the effect on a hypothetical person of three 12-ounce bottles of beer in a one-hour period and the percentage of alcohol remaining in such hypothetical person after a two hour period of oxidation and elimination.

2. In permitting improper use for ostensible impeachment purposes of the defendants' Answers to Interrogatories propounded by the plaintiff, when such were not impeaching and then failing to give the defendants opportunity to explain such.

3. In admitting the opinion testimony of two witnesses regarding the intoxication of Burroughs, when no proper foundation was laid and both were incompetent to express such an opinion

4. In refusing to admit the defendants' Exhibit 2 which was the plaintiff's common law complaint against Burroughs in a separate suit and containing the admission that Burroughs was overcome by sleep and continued to drive his auto.

5. In sustaining the plaintiff's objection to the circumstantial evidence attempted to be introduced by Burroughs and his mother, to the effect that he had less than $1.00 on his person on the day in question, with which he could purchase any alcoholic liquor.

It is the plaintiff's theory that there was ample competent evidence to establish the intoxication of Clifford E. Burroughs at the time the car driven by him struck the car driven by the plaintiff, Raymond Nystrom, including Burroughs' drinking and conduct at the tavern of the defendants, Al Bub and Mary L. Bub, and afterward his operation of his auto immediately prior to the collision, and the opinions of witnesses who observed him immediately after the collision that he was intoxicated, and that the alleged errors in the admission of evidence, and the refusal to admit certain other evidence are not well-founded.

The Complaint, Count I, alleged, in substance, so far as material, that on or about June 25, 1959, the defendants, Al Bub and Mary L. Bub, by themselves, their agents or servants, sold or gave to one Clifford E. Burroughs in their tavern or dram shop alcoholic liquor, which caused, in whole or in part, the intoxication of Clifford E. Burroughs; while so intoxicated as a result of the consumption of such alcoholic liquors Clifford E. Burroughs drove an automobile in a drunken and intoxicated manner in a northerly direction along a certain public road or highway known as the Andover-Woodhull blacktop, running generally in a northerly and southerly direction between the Villages of Woodhull and Andover in Henry County, and more particularly at a point approximately four and one-half miles north of the Village of Woodhull at a place where it passes the premises occupied by Vincent Danielson, the road then and there running in a northerly and southerly direction; at that time and place his automobile was being driven by Clifford E. Burroughs in a northerly direction at approximately 11:55 p. m.; at that time and place the plaintiff was driving his automobile in a southerly direction on the Andover-Woodhull blacktop and on the right or westerly half of the roadway; Clifford E. Burroughs then and there drove his automobile accross the center of the road and onto the west side thereof so that it first collided with another automobile being operated by Edward Barton in a southerly direction immediately, but at a safe distance, ahead of the plaintiff, and then Burroughs collided with the automobile operated by the plaintiff, so that it (the plaintiff's car) crashed into the westerly ditch or embankment of the roadway, overturned, and caught fire, and the plaintiff sustained divers serious injuries; and as a result of the intoxication of Clifford E. Burroughs and in consequence thereof and as a direct and proximate result of the collision, the plaintiff, Raymond Nystrom, sustained serious and permanent injuries. Count II alleges in substance the same things and in addition the facts particularly pertinent to the alleged loss of means of support by the plaintiff's wife and children. The defendants' answer denied the essential allegations of the complaint.

At about midnight on June 25, 1959, the plaintiff was driving in a southerly direction on the blacktop road between Andover and Woodhull, at about 50 m. p. h., behind another car driven by Mrs. Edward Barton. The road is 21 feet wide. Clifford Burroughs was driving northerly on the same road. In front of the Vincent Danielson farm Mrs. Barton saw Burroughs' car come directly at her in the southbound lane, he did not appear to put on his brakes, she dimmed her lights and Burroughs dimmed his lights, and finally he sideswiped her car whose right wheels were in the west ditch at the time of impact. Her car swung into the ditch. Burroughs' car continued north in the southbound lane until colliding headon with the plaintiff's car. The plaintiff's car came to rest on the west shoulder and caught fire. The Burroughs' car was about 310 feet north of the Barton car afterwards. The weather was hot and clear. The pavement was dry and visibility good. Burroughs' car left no skid or tire marks before striking the plaintiff's car. The plaintiff had severe injuries, which need not be detailed under the circumstances.

State Police Trooper Robertson, who was at the scene of the accident, stated that, when he arrived at the scene, he observed the plaintiff's car burning on the shoulder of the road. He talked to the plaintiff, who was sitting on the bank in front of the Danielson farm, and the plaintiff said that his leg was broken. He then went up to Burroughs who 'seemed semi-conscious' and it seemed did not understand what was going on. He was bleeding about his face and head and the officer was unable to get any conversation from him. It was apparent from the wreckage plus the injury to Burroughs, that the latter was unable to carry on any conversation. A rubber blanket was brought from the Police Squad car and Burroughs was put in it because he was in shock. Robinson smelled the odor of alcohol on Burroughs, from about 2 feet, but was unable to determine whether it was beer, whiskey, wine or any particular beverage. He testified that, 'it is a fair statement to say that to determine how much Burroughs might have had to drink, I couldn't say.' 'I couldn't say whether he was sober or intoxicated. I did not charge him with drunk driving.' The officer concluded that when Burroughs was being put in the ambulance 'his condition was the same as when he was lying on the ground, semi-conscious.'

Edward Barton testified that as soon as the car his wife was driving came to rest, he ran to the plaintiff's car and pulled him out because it was on fire around the hood. After leaving Nystrom at the shoulder of the road, he ran to Burroughs' car and found Burroughs bleeding around the head and nose and he gave the latter his hankerchief. He stated that Mrs. Fossum, a nurse, then came along and when she observed Burroughs leaning against his car she told him to lie back down immediately. Barton testified that Burroughs was not fully conscious and that he never did have a conversation with Burroughs, although when he helped put Burroughs down on the blanket, he could smell alcohol on Burroughs' breath. Both he and Mrs. Fossum were rendering Burroughs aid at that time. Barton stated: 'From my observation of Burroughs immediately after this collision and also when the nurse was present, I have an opinion as to whether he was intoxicated or not. My opinion is I think he was drinking quite heavily and was drunk.' He said he had no way of knowing the amount of intoxicating liquor Burroughs supposedly drank. He smelled something on his breath. He said he was not basing his opinion on the fact he smelled alcohol on his breath. In a pre-trial statement he had said, inter alia, that he would have no way of knowing Burroughs' state of sobriety.

Mrs. Leonard Fossum testified that she was a registered nurse, supervising the Oak Glen Nursing Home in Coal Valley. At the time of the accident she was returning home from work and when she arrived at the scene she saw the plaintiff's car burning in the vicinity of Danielson's farm. She went up...