Phenicie v. Service Liquor Store, Inc.

• Decision Date: 05 January 1960
• Docket Number: Gen. No. 10244
• Citation: 163 N.E.2d 220,23 Ill.App.2d 492
• Parties: Jared M. PHENICIE, Plaintiff-Appellant, v. SERVICE LIQUOR STORE, INC., an Illinois Corporation, and Eugene Stern, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 220

163 N.E.2d 220

23 Ill.App.2d 492

Jared M. PHENICIE, Plaintiff-Appellant, v. SERVICE LIQUOR STORE, INC., an Illinois Corporation, and Eugene Stern, Defendants-Appellees.

Gen. No. 10244.

Appellate Court of Illinois, Third District.

Jan. 5, 1960.

Winkelmann & Winkelmann, Urbana, for appellant.

Creed D. Tucker, Law Offices of Ray F. Dobbins, Champaign, for appellees.

ROETH, Justice.

Plaintiff commenced an action under the Dramshop Act against Service Liquor Store, Inc., the operator of a package liquor store, and Eugene Stern, the owner of the building in which the liquor store was operated. The complaint contained the usual allegations of a sale of liquor to one Ardith Davis which caused his intoxication in whole or in part. The complaint then alleged that Ardith Davis while intoxicated, negligently operated an automobile in which plaintiff was riding as a passenger, causing it to strike a concrete abutment thereby injuring plaintiff. Defendants took a discovery deposition of the plaintiff and then filed a motion for summary judgment attaching the deposition to the motion. In the motion for summary judgment defendants took the position that either Ardith Davis was not intoxicated or that if intoxicated plaintiff was guilty of complicity in producing the intoxication of Ardith Davis. Plaintiff filed a counter showing in opposition to the motion for summary judgment consisting of certain affidavits, the contents of which will be hereinafter noted.

From plaintiff's discovery deposition it appears that he and Davis were friends. On the evening of April 10, 1958, at about 6:45 P.M., Davis stopped at plaintiff's house trailer. Plaintiff was getting ready to go to a National Guard meeting. Davis told plaintiff that he had borrowed $5 and he was going down to Service Liquor Store to get some beer. Later that evening, between 8:30 and 9:00 P.M., Davis came down to where the meeting was being held and joined the group during a coffee break. Plaintiff said that he could tell that Davis had been drinking, that the odor of alcohol about him was real strong and that he laughed and talked continually and acted silly. Although not a member of the guard unit, Davis remained during the remainder of the meeting and continued to talk in low tones during the class instruction. The meeting of the National Guard ended at 10:30, whereupon plaintiff and Davis, each driving his own car, went to plaintiff's house trailer where Davis produced a quart of beer which the two proceeded to drink. Davis had two glasses and the plaintiff had one glass and a half of the beer, the whole quart being thus consumed. At about 11:45 plaintiff and Davis left in Davis' car to go to the town of St. Joseph with Davis driving. The accident occurred en route.

Apparently to forestall defendants' claim in their motion for summary judgment that Davis was not intoxicated, plaintiff filed the counter showing above noted. This consisted of (1) an affidavit of the State Trooper who was at the scene of the accident and who stated that Davis was intoxicated, (2) an affidavit of a nurse at the hospital to which Davis was taken who stated that upon admittance to the hospital Davis appeared to be intoxicated and that an intoxication test was given to him, (3) the result of a Harger drunkometer test showing an alcoholic content of .40%, (4) the affidavit of a doctor that an alcoholic content of .15% is considered to indicate intoxication and that .40% is the equivalent of the consumption of a fifth of whiskey or similar alcoholic beverage, and (5) the record of conviction of Davis of the charge of driving the car while under the influence of intoxicating liquor. With the foregoing before it, the trial court granted defendants' motion for summary judgment and entered judgment for the defendants.

In Meier v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215, 216, the court said:

'In the counter-affidavit which plaintiff filed, there was no denial of his participation in the drinking nor did he deny that his brother was sober. He merely recalls and seeks to prove that he did not have money enough to buy drinks. It has been repeatedly held that a plaintiff who participates in bringing about the intoxication of...