Osborn v. Leuffgen

• Decision Date: 12 January 1943
• Docket Number: No. 26652.,26652.
• Citation: 381 Ill. 295,45 N.E.2d 622
• Parties: OSBORN et al. v. LEUFFGEN et al.
• Court: Illinois Supreme Court

381 Ill. 295

45 N.E.2d 622

OSBORN et al.

v.LEUFFGEN et al.

No. 26652.

Supreme Court of Illinois.

Nov. 17, 1942.

Rehearing Denied Jan. 12, 1943.

Action by Mary Osborn, individually, and Howard Osborn and others, minors, by Mary Osborn, their mother and next friend, against William Leuffgen and others to recover damages under the Dram Shop Act, for death of Hope J. Osborn, who was husband of Mary Osborn and father of the minor plaintiffs. A judgment for defendants notwithstanding the verdict for plaintiffs was reversed by the Appellate Court, 38 N.E.2d 370, 312 Ill.App. 251, and the defendants appeal.

Judgment of the Appellate Court affirmed.Appeal from Appellate Court, First District, First Division, on Appeal from Circuit Court, Cook County; Ben F. Anderson, Judge.

Lord, Bissell & Kadyk, of Chicago (David J. Kadyk, Raymond Wearing, and Gordon R. Close, all of Chicago, of counsel), for appellants.

Rathje, Hinckley, Barnard & Kulp, of Chicago (Francis E. Hinckley and James P. Walsh, both of Chicago, of counsel), for appellees.

THOMPSON, Justice.

Mary Osborn and her four minor children brought suit under the civil liability provisions of the Dram Shop Act, Ill.Rev.Stat. 1941, chap. 43, par. 135, against appellants, who were the tavern keeper, his bartender, and the owner of the tavern building where Hope J. Osborn, who was the husband of Mary Osborn and the father of the four minor children, sustained injuries resulting in his death. The defendants offered no evidence, but presented motions asking for a directed verdict in their favor. The court reserved ruling on the motions. The case was submitted to a jury and a verdict returned in favor of plaintiffs for $4,800. Defendants then filed their written motions in the alternative for judgment notwithstanding the verdict and for a new trial. The court allowed the motion for judgment notwithstanding the verdict, and judgment was entered in favor of defendants. On appeal to the Appellate Court for the First District the judgment for defendants notwithstanding the verdict was reversed. 312 Ill.App. 251, 38 N.E.2d 370. A petition for appeal to this court has been allowed, and we now have for consideration the question whether the trial court was justified in setting aside the verdict and entering a judgment in favor of defendants.

The sole point raised on this appeal is that the evidence did not show that the fatal assault made upon decedent in defendants' tavern resulted from the intoxication of his assailant. This limits our consideration of the case to the one question of law whether when all the evidence is considered, together with all reasonable inferences from it in its most favorable aspect to the plaintiffs, there is a total failure to prove any necessary element of their case. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 395, 173 N.E. 394. The question presented is whether there is any evidence which, when standing alone and taken with its inferences most favorable to plaintiffs, tends to support their case charged in the complaint. Walaite v. Chicago, Rock Island & Pacific Railway Co., 376 Ill. 59, 62, 33 N.E.2d 119. As stated by appellants, the only question in this case is whether there is any evidence which, when taken as true and considered most strongly in favor of plaintiffs, fairly tends to prove, or from which it can reasonably and legitimately be inferred, that Osborn died as the result of an assault made upon him by Dobry (his assailant), while the latter was intoxicated.

The decedent, Hope J. Osborn, at the time of the occurrence in question, was a switchman employed by the Illinois Central Railroad Company, and was living with and supporting out of his earnings his wife and four minor children. October 19, 1938, he finished his day's work about midnight, took one of the Illinois Central trains home, and after leaving the train, walked about three blocks toward his home and went to the tavern which was on the first floor of the building where he lived. There were then sitting at the bar of the tavern two acquaintances of his, Alex Berquist and Joseph Dobry. Dobry had been at the tavern and sitting at the bar before either Berquist or Osborn arrived. After Berquist's arrival, he and Dobry engaged in conversation and Berquist invited Dobry to have a drink with him. Dobry at the...