Shore v. Turman

• Decision Date: 09 September 1965
• Docket Number: Gen. No. 10629
• Citation: 210 N.E.2d 232,63 Ill.App.2d 315
• Parties: Ray E. SHORE, Plaintiff-Appellant, v. Dean P. TURMAN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 232

210 N.E.2d 232

63 Ill.App.2d 315

Ray E. SHORE, Plaintiff-Appellant, v. Dean P. TURMAN, Defendant-Appellee.

Gen. No. 10629.

Appellate Court of Illinois, Fourth District.

Sept. 9, 1965.

Rehearing Denied Sept. 28, 1965.

LeForgee, Samuels, Miller, Schroeder & Jackson, Decatur, Russell J. Goldman, Rockford, for appellant.

Greanias & Owen, Decatur, for appellee.

SMITH, Presiding Justice.

Plaintiff appeals from a judgment entered on an adverse verdict of the jury in a personal injury suit arising out of an automobile accident and the court's denial of his motion for new trial. The sole question is the alleged error of the trial court in giving two instructions on intoxication where intoxication is not made a specific issue in the pleadings, where it has a bearing only on the issue of plaintiff's due care and where, it is said, there is no evidence to support its giving.

Both instructions tendered by the defendant and given by the court are found in Illinois Pattern Instructions. Defendant's No. 8 is IPI No. 150-15 and reads as follows:

'A person is 'intoxicated' when as a result of drinking alcoholic liquor there is an impairment of his mental or physical faculties so as to diminish his ability to think and act with ordinary care.'

Defendant's No. 7 is IPI No. 12.01 and reads as follows:

'Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was [negligent] [contributorily negligent]. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.'

No criticism is directed to either the form or the content of these instructions. Plaintiff's position, simply stated, is that it is error to give these instructions where there is no evidence of intoxication, opinion or otherwise to support them. Defendant's position is that where there is evidence of drinking or of the use of intoxicating liquor prior to an accident, there is an evidentiary foundation for these instructions. The issue it would seem is deeper than a mere didactic exercise in semantics.

The accident happened shortly after midnight on U.S. 36 out of Decatur. The highway is a four-lane highway with two eastbound lanes and two westbound lanes separated by a grassy median strip some 40 feet in width the lowest portion of which was a little over 3 feet below the surface of the highway. The defendant was in the right-hand eastbound lane with his wife and three small children in the car with him. He was traveling about 55 miles per hour. Plaintiff, with two passengers in the front seat with him, was traveling in the same direction at a speed of 60-70 miles per hour, moved over into the left lane and started to pass. These three testified that the defendant suddenly swerved partially into their lane in front of the plaintiff's car and forced it off the pavement and onto the grassy median. It crossed a concrete turnabout and struck a bridge abutment beyond, turned over, and inflicted serious and permanent injuries on the plaintiff. Both defendant and his wife testified that their car was never in the left eastbound lane and that the first warning they had of plaintiff's car was when its lights illuminated the interior of theirs. There was no contact between the two automobiles. Defendant went on up the road, turned around and returned to the scene of the accident. Without detailing other apparently conflicting circumstances, it is sufficient to say that the jury was confronted with a choice between two squarely diverse views on an important ultimate fact. The credibility of the witnesses and the weight of their testimony was a difficult one for the jury. Where such is the case, precision, care, and accuracy in instructions assume a more than ordinary significance. Rasmussen v. Wiley, 312 Ill.App. 404, 39 N.E.2d 57; Sharp v. Brown, 349 Ill.App. 269, 110 N.E.2d 541; Handell v. Chicago Transit Authority, 30 Ill.App.2d 1, 173 N.E.2d 529.

The nature, extent, and the volume of plaintiff's libations enter the case through his lips and those of his witnesses. Plaintiff was unmarried, 24 years of age, a pipeline construction worker and roomed with two co-workers in Maroa, Illinois. They got off work around 7:30--8:00 p. m., went to El Roa Inn for dinner, and played a game or two of skill pool. It was here that plaintiff had his drinks. In answer to interrogatories, he had stated that 'from 8:30 to 10:30 I drank 4 to 6 bottles of beer and ate dinner'. On direct examination, he stated 'I had 4 bottles of beer--the small eight-ounce bottles'. This was corroborated by one of his co-workers. About 10:30 they went to Mason's restaurant. No drinks were served there. Some of the folks had coffee and sandwiches. Plaintiff stated that he had some--the others were not too specific about what he had to eat. About midnight Shirley Mason and Mrs. Gowan left with the plaintiff in his car to take Shirley home. Enroute the accident happened. Mr. Mason, the proprietor of the restaurant; Mrs. Gowan, his daughter; Shirley Mason, his sister-in-law; and one Atterberry, a co-worker of the plaintiff's, all testified, with characteristic differences in the choice of words, that the plaintiff was not under the influence of alcohol; that his gait was normal; his speech coherent and clear, and his actions and attitude normal. All had known him and seen him over a period of several weeks and he was dating Mrs. Gowan on occasion. There is no specific evidence to the contrary and none on the subject was offered by the defendant. In this state of the record, should the instructions on intoxication have been given? We think not.

We cannot quarrel with the proposition that a party has a right to have the jury instructed on his theory of recovery or defense. Equally entrenched in our law is the proposition that the lifeblood of a legal theory is facts and if there are no facts supporting the theory, it is error to instruct on that theory. Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142; Magill v. George, 347 Ill.App. 6, 105 N.E.2d 808; 35 Illinois Law and Practice, Trial, § 233. To inject into a case by way of instructions an issue not fairly presented by the pleading and the evidence in the case is reversible error. Turner v. Seyfert, 44 Ill.App.2d 281, 194 N.E.2d 529; Chism v. Decatur Newspapers, Inc., 340 Ill.App. 42, 91 N.E.2d 114; Chevalier v. Chicago Transit Authority, 338...