Schwedler v. Galvan, 62629

• Decision Date: 24 February 1977
• Docket Number: No. 62629,62629
• Parties: , 4 Ill.Dec. 891 Kathleen SCHWEDLER, Administrator of the Estate of Joseph P. Scialabba, Deceased, Plaintiff-Appellee, v. Ronald J. GALVAN et al., Defendants, Josephine Grove, d/b/a Josephine's Lounge, and Southpark Mortgage Corporation, an Illinois Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1324

360 N.E.2d 1324

46 Ill.App.3d 630, 4 Ill.Dec. 891

Kathleen SCHWEDLER, Administrator of the Estate of Joseph P Scialabba, Deceased, Plaintiff-Appellee, v. Ronald J. GALVAN et al., Defendants Josephine Grove, d/b/a Josephine's Lounge, and Southpark Mortgage Corporation, an Illinois Corporation Defendants-Appellants.

No. 62629.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 24, 1977.

Heineke & Schrader, Chicago, for Josephine Grove and Southpark mortgage corp.

E. T. Cunningham, Chicago, for plaintiff-appellee.

ROMITI, Justice:

The defendants appeal from a jury verdict finding them liable in a dram shop action, contending: (1) that the evidence was insufficient to go to the jury; (2) that because of certain evidence improperly admitted and, (3) because of improper remarks by plaintiff's counsel in opening statements and closing arguments creating evidence which did not exist, the defendants were denied a fair trial.

While we find there was sufficient evidence to go to the jury, we agree that because of certain errors in admitting evidence and improper remarks in argument, the judgment must be reversed and the case remanded for a new trial.

This action was originally brought by Joseph P. Scialabba against Ronald J. Galvan and Hector Coronado for wanton and wilful assault, and against the defendants Grove and Southpark Mortgage Corporation for recovery under the Dram Shop Act. Scialabba was shot and wounded on October 4, 1970 shortly after 2:00 A.M. at the corner of 29th Street and South Wentworth Avenue in Chicago. Sometime after the suit was filed Scialabba died from causes not related to the shooting. The administratrix was substituted as the plaintiff. At the trial, Galvan and Coronado were declared to be in default for their failure to appear and defend or otherwise answer the plaintiff's complaint; however, no judgment has ever been taken against them.

After evidence presented by the plaintiff (the defendants presented no evidence) the jury returned a verdict for the plaintiff against the defendants for $15,000.

Besides the administratrix, who testified as to her father's health before and after the shooting, and Dr. McCarthy who treated the deceased after the shooting and who testified as to the nature and permanent effects of the injuries and the reasonableness of his and the hospital's bill, three witnesses testified for the plaintiff. The first of these witnesses was John Kennedy, a patrolman assigned to the case after 8:30 A.M. October 4, 1970. He was allowed to testify over the defendants' objection that Galvan had told him that he and Coronado had been in Josephine's Lounge; that they had left and when they came to a man, Coronado took out a gun and fired it at the man; that Galvan said he hadn't known what was going to happen and he was surprised at it, and that there was no exchange of words. The court did instruct the jury that the evidence as to Galvan's statement was admissible only as to him, and as to him, the court was passing on both the law and the facts.

The second of these witnesses was James Price, who testified substantially as follows: He lived on South Wentworth. At about 2:00 A.M. October 4, he and a friend of his, Freddie Williams, left a tavern known as Father's Lounge located at 2914 South Wentworth where they had been for several hours. They walked south in the direction of Josephine's Lounge which, according to Price, was the only lounge open at that hour in that block. In about the middle of the block, they were approached by two 'Mexicans' who appeared to be drunk. One of the two had a gun. He threatened Williams, saying, 'Do you want to die?' Price persuaded them to leave them alone. The two 'Mexicans' then continued on their way. Williams and Price stood and chatted and watched the two men. Joseph Scialabba then came around the corner. They heard a shot and Price saw Scialabba fall. While Price did not actually see the shooting, he believed the two men who threatened Williams shot Scialabba. They, Price and Williams, were the only people on the street as Price and Williams walked from Father's to Josephine's.

Price had been in Josephine's Lounge earlier that evening from about 8:00 P.M. for over an hour. While there, he did not see the two 'Mexicans' he later encountered on the street.

The last of these witnesses was John Brown, a bartender at Josephine's Lounge. He testified that on the night of the shooting he worked as the only bartender from 6:00 P.M. until closing at 2:00 A.M. Early on the morning of October 4, 1970 three Spanish-speaking men entered the tavern. Brown believed he served each of the men six or eight 12-ounce bottles of beer. One of the men had a gun. Brown told Charles Grove (the owner's husband) that 'this dude was drunk and he has a pistol * * *.' Grove then took the gun away from the one man. Brown continued to serve the three.

Where the tavern closes at 2:00 A.M., everyone must leave unless they have a drink on the bar. The three Spanish-speaking men remained for a 'shot time' after closing but because they became rowdy Grove asked them to leave. Grove also retuned the gun to the man from whom he had earlier taken it. All three were drunk when they left, Bronw left about five minutes after they did. ¹

Brown knew one of three men by the name of 'Fox.' He did not know the other two. He 'believed' Price had been in Josephine's at the same time the trio were there. ²

Brown was shown some photographs the next day. Over objections he testified that he recognized some of the photographs as those of the men who were in the bar the night before. The photographs were not identified.

As already stated, the defendants moved for a directed verdict at the end of the plaintiff's case and did not put on any evidence. They also moved for a mistrial because in his opening statement, plaintiff's counsel said that:

'(1) the three men, when leaving the tavern threatened a man, William Butler, who was standing outside. He persuaded the man with the gun to take it easy;

(2) Grove told the police that one of the men they were looking for was Galvan and he believed they called the other man Hector and that Grove also told the police the make of the car Galvan was driving.'

During the trial, the court ruled that the patrolman John Kennedy could not recount the conversation with Grove since that was hearsay, although Grove had introduced himself to the patrolman as owner of the lounge. Likewise, the plaintiff was unable to locate Butler.

During the closing argument plaintiff's attorney made several serious misstatements as to the testimony of the witnesses. Specifically he argued that after the identification of photographs, the police searched for Galvan; that the police showed photographs to the bartender and to Grove who were able to select them, and that photos were shown to Price. No specific objection to these arguments were made by defense counsel.

I.

We may quickly dismiss the defendants' contention that the evidence was insufficient for the jury because the plaintiff failed to prove that Galvan and Coronado do were the individuals involved in the shooting. The plaintiff did allege that Scialabba was shot by Galvan and Coronado. It is true that normally the allegations and proofs must correspond. But, an objection that the issue was not raised in the pleadings may be waived by the conduct of the objecting party. (Hemingway v. Skinner Engineering Co. (1969), 117 Ill.App.2d 452, 254 N.E.2d 133.) Furthermore, an objection that there was a variance between the pleadings and proof cannot be raised for the first time after verdict and judgment. (Raimondi v. Ziffrin Truck Lines (1946), 329 Ill.App. 650, 70 N.E.2d 221 (Abst.)), since the other party might be able to amend the pleadings. For the same reason, the objection should point out plainly, distinctly and specifically in what the alleged variance consists. 2 Illinois Law and Practice, Appeal and Error, § 249.

Here the defendants argued at length in chambers that the plaintiff had failed to prove a cause of action. Yet at no time did the defendants' suggest that the plaintiff must prove that Galvan and Coronado had been involved and that she had not done so. To the contrary, the defendants in enumerating what the plaintiff must prove stated merely that she must prove that the person inflicting the injury was intoxicated and was sold or given alcoholic beverages by the tavern, and argued that there was no proof that the person who shot the deceased had been in the tavern. Likewise, the defendants did not disagree with the plaintiff's statement that she must prove that there were one or more persons who became intoxicated in Josephine's and who while so intoxicated shot the deceased. Having failed to raise the issue of variance timely below, the defendants cannot do so here. Accordingly, we need not decide whether the alleged variance was material and misled the defendants to their injury. De Anguera v. Arreguin (1968), 92 Ill.App.2d 381, 234 N.E.2d 808; Stevenson v. Meyer (1957), 10 Ill.2d 335, 139 N.E.2d 740.

The question whether the defendants should have been granted a directed verdict is much more difficult. It is well established that the facts in a dram shop case may be established by circumstantial evidence. (Hocker v. O'Klock (1959), 16 Ill.2d 414, 158 N.E.2d 7.) Moreover, in determining whether the circumstantial evidence establishes that the individuals in Josephine's were the ones who did the shooting, we do not require proof beyond a reasonable doubt, as in a criminal case; we require only, as in other civil cases, that the evidence and inferences therefrom, when viewed in the aspect most favorable to the plaintiff, make it more probable that they did (Hocker v. O'Klock (1959), 16 Ill.2d 414, 158 N.E.2d 7), and a verdict may be directed only in a case in which all of the evidence, when viewed in its aspect most favorable to the opponent, so...