Walter v. Carriage House Hotels, Ltd., 5-91-0131

• Decision Date: 27 January 1993
• Docket Number: No. 5-91-0131,5-91-0131
• Citation: 607 N.E.2d 662,239 Ill.App.3d 710
• Parties: , 180 Ill.Dec. 593 Wayne D. WALTER, Plaintiff-Appellee, v. CARRIAGE HOUSE HOTELS, LTD., a corporation, Defendant-Appellant, and David Shelton, Defendant.
• Court: United States Appellate Court of Illinois

Page 662

607 N.E.2d 662

239 Ill.App.3d 710, 180 Ill.Dec. 593

Wayne D. WALTER, Plaintiff-Appellee, v. CARRIAGE HOUSE HOTELS, LTD., a corporation, Defendant-Appellant and David Shelton, Defendant.

No. 5-91-0131.

Appellate Court of Illinois Fifth District.

Jan. 27, 1993.

Thomas L. Kilbride, Klockau, McCarthy, Ellison & Marquis, P.C., Rock Island, for defendant-appellant.

Michael J. Meyer, Meyer, Keller & Runde, Effingham, for plaintiff-appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Wayne D. Walter, brought this action against defendants, David Shelton and Carriage House Hotels, Ltd., a corporation (hereinafter defendant), to recover damages for personal injuries he sustained when the intoxicated Shelton attacked him on July 18, 1988. Shelton failed to appear at the trial and is not a party to this appeal. Defendant appeals from a jury verdict of the circuit court of Effingham County finding it liable for plaintiff's injuries under section 6-21 of the Liquor Control Act (Dramshop Act) (Ill.Rev.Stat.1987, ch. 43, par. 135).

In this appeal, defendant contends: (1) the trial court should have granted defendant's motion for directed verdict on the affirmative defense of complicity; (2) the trial court erred in its rulings on certain jury instructions; (3) the trial court erred in allowing plaintiff's counsel to make prejudicial statements during closing arguments on the central issue of intoxication; (4) the trial court erred in denying defendant's motion to sever; and (5) the trial court erred in not sustaining several of defendant's evidentiary objections. We affirm.

I

Between 7:30 and 8 p.m. on July 17, 1988, plaintiff, his ex-wife, Loretta Garrett, David Shelton, and Connie Osborne, Shelton's girl friend, went to the Brass Rail Restaurant and Lounge to have dinner. When they arrived, plaintiff and Shelton each had one beer. A waitress informed the group that it was too late for food service in the lounge, so Shelton paid for the drinks and they went to Ichabod's where they ate dinner. Plaintiff and Shelton each had one beer with dinner, and plaintiff paid for the food and drinks. From Ichabod's, plaintiff drove Shelton and their two companions to the Carriage House Hotel. A band was playing at Chaser's Lounge in the hotel, and the four sat together at a table where they could listen to the music. The group stayed at the lounge three to four hours, during which time Shelton consumed 10 or 11 rounds of beer and an equal number of whiskey shots. As the evening progressed, plaintiff observed that Shelton was drinking heavily, but did nothing to encourage or discourage him. Shelton paid for all his own drinks as well as the three to four beers plaintiff consumed at the Carriage House Hotel. At approximately 10:30 p.m., Shelton and Connie Osborne began arguing. Connie then left the bar, and plaintiff asked Loretta Garrett to go after her. Loretta walked outside but returned when she was unable to locate Connie. Plaintiff volunteered to look for her in the car, but Shelton became belligerent and ordered plaintiff to sit back down. Finally, at approximately 11:30 p.m., plaintiff convinced Shelton it was time to leave. Plaintiff, Shelton and Loretta walked outside and found Connie waiting by the car. They all got into plaintiff's car, and plaintiff drove back to his apartment. When they arrived at the parking lot adjacent to plaintiff's apartment, Shelton got into his own car and sped away, leaving Connie behind. Loretta offered Connie a place to stay for the night, and the two women drove to Loretta's apartment. Shortly thereafter, plaintiff drove to a nearby Hardee's Restaurant for a sandwich and coffee. Plaintiff returned to his apartment between 1 and 1:30 a.m. on July 18, 1988, and Shelton appeared at plaintiff's door a few minutes later. Plaintiff allowed Shelton entrance into the apartment, and Shelton asked where Connie was. Plaintiff responded she was spending the night at Loretta's apartment and suggested that Shelton get some sleep on plaintiff's couch. Shelton once again became belligerent, insisting on calling Connie immediately. Plaintiff tried to reach Loretta without success. Shelton then grabbed the telephone receiver and used it to hit plaintiff's jaw and face repeatedly. Plaintiff fell to the floor, and Shelton began kicking plaintiff's legs and torso. Plaintiff pretended to lose consciousness, and Shelton went into the bathroom. Plaintiff then rose from the floor, attempting to reach the bedroom and some means of self-defense, but Shelton saw him and resumed his attack. Shelton knocked plaintiff down and continued kicking plaintiff all over his body. Plaintiff again feigned unconsciousness, and Shelton left the apartment. A neighbor called the police, and plaintiff was taken to the hospital where he was diagnosed with a broken jaw, a fractured skull, four broken ribs, eye injuries, and numerous cuts and bruises.

Plaintiff filed a two-count complaint on January 23, 1989, naming Shelton and Carriage House Hotels, Ltd., as defendants. Count I alleged a cause of action against defendant under the Dramshop Act, and count II alleged a cause of action against Shelton for battery. Shelton wrote a letter to the trial court stating that he was incarcerated, would be unable to appear at any hearings, and was financially incapable of obtaining legal representation. Shelton filed no pleadings and the record indicates there was no further communication between Shelton and the trial court. Defendant moved to sever plaintiff's case against it from plaintiff's case against Shelton, but the trial court denied the motion, and the case against both defendant and Shelton proceeded to trial. Defendant also filed the affirmative defense of complicity and moved for directed verdict after plaintiff rested and at the close of the case. The trial court deferred ruling at the close of plaintiff's case and later denied defendant's motion before submitting the case to the jury. The jury found for plaintiff and awarded damages in the amount of $39,622.20. Although judgment was entered against Shelton and defendant, Shelton is not involved in this appeal.

II

On appeal, defendant first contends that the trial court should have granted its motion for directed verdict on the affirmative defense of complicity. Defendant argues that plaintiff should be barred from recovery as a matter of law and the trial court erred by not directing the verdict in favor of defendant. Plaintiff responds that the issue of complicity is factual, and the trial court properly submitted the case to the jury.

The Dramshop Act provides no statutory defenses. Complicity as an affirmative defense was developed by judicial decision. The doctrine is based on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to succeed against the dramshop keeper. (Osinger v. Christian (1963), 43 Ill.App.2d 480, 485, 193 N.E.2d 872, 874.) Prior to 1978, decisions on the issue of complicity were vastly inconsistent. In response to the disparity among the appellate court decisions, our supreme court reasserted the correct rule of complicity. (Nelson v. Araiza (1978), 69 Ill.2d 534, 14 Ill.Dec. 441, 372 N.E.2d 637.) After discussing various decisions dealing with the complicity doctrine, the court stated:

"The orderly administration of justice dictates that a clear rule of complicity be distilled. That rule, predicated on the better-reasoned decisions and the concept of the doctrine is this: only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery. (See Hays v. Waite (1890), 36 Ill.App. 397; Douglas v. Athens Market Corp. (1943), 320 Ill.App. 40; Ness v. Bilbob Inn, Inc. (1957), 15 Ill.App.2d 340; Taylor v. Hughes (1958), 17 Ill.App.2d 138; Burnley v. Moore (1963), 41 Ill.App.2d 156; Baker v. Hannan (1963), 44 Ill.App.2d 157.)" (69 Ill.2d at 543, 14 Ill.Dec. at 445, 372 N.E.2d at 641.)

The court further enunciated that in many cases the issue will be one of fact under the given circumstances, while in other cases the issue will be a matter of law for judicial determination. (69 Ill.2d at 543, 14 Ill.Dec. at 445, 372 N.E.2d at 641.) Whether complicity is an issue of fact or a matter of law depends upon the sufficiency of evidence to support the doctrine. 69 Ill.2d at 543, 14 Ill.Dec. at 445, 372 N.E.2d at 641.

Both parties cite several cases to support their positions. These decisions can be divided into three categories. The first class of cases includes decisions which predate Nelson but are not listed by the supreme court as the "better-reasoned decisions" cited as exemplifications of the court's stated rule of complicity. (Nelson, 69 Ill.2d at 543, 14 Ill.Dec. at 445, 372 N.E.2d at 641.) Defendant argues that such cases, specifically, Leischner v. Daniel's Restaurant, Inc. (1977), 54 Ill.App.3d 568, 12 Ill.Dec. 534, 370 N.E.2d 157, Holcomb v. Hornback (1964), 51 Ill.App.2d 84, 200 N.E.2d 745, Phenicie v. Service Liquor Store, Inc. (1960), 23 Ill.App.2d 492, 163 N.E.2d 220, and Meier v. Pocius (1958), 17 Ill.App.2d 332, 150 N.E.2d 215, are relevant to the disposition of the case at bar. We disagree.

In Leischner, the court held that a plaintiff voluntarily participating in the drinking activity to a material and substantial degree would be barred from recovery as a matter of law. (54 Ill.App.3d at 571, 12 Ill.Dec. at 536, 370 N.E.2d at 159.) Similarly, the Holcomb court stated the test of complicity as "whether or not the injured party willingly and voluntarily participated in the drinking activity of the person who became intoxicated and inflicted the injury." (51 Ill.App.2d at 90, 200 N.E.2d at 748.) In Phenicie, the court, relying on Meier, held that participation by a plaintiff in the intoxicated person's drinking exonerates the defendant from liability under the Dramshop Act. (23 Ill.App.2d at 496, 163 N.E.2d at 222...