Zahn v. Muscarello

• Decision Date: 30 December 1948
• Docket Number: Gen. No. 44221.
• Citation: 336 Ill.App. 188,83 N.E.2d 504
• Parties: ZAHN v. MUSCARELLO et al.
• Court: United States Appellate Court of Illinois

336 Ill.App. 188

83 N.E.2d 504

ZAHN

v.MUSCARELLO et al.

Gen. No. 44221.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1948.

Appeal from Circuit Court, Cook County; George W. Bristow, Special Judge.

Action by Martha Zahn against Joseph Muscarello, Victor A. Juric, Karl Reidelmaeier and Lena Reidelmaeier brought under the Dram-Shops Act for damages and loss of means of support as result of the death of plaintiff's husband while intoxicated. From the judgment defendants appeal.

Judgment affirmed in part and reversed in part.Ekern, Meyers & Matthias, of Chicago (Donald L. Thompson and William G. Chorn, both of Chicago, of counsel), for appellants.

Kamfner & Halligan, of Chicago (Martin K. Irwin, Edw. A. Halligan and Paul Denvir, all of Chicago, of counsel), for appellee.

FRIEND, Justice.

Martha Zahn, widow of John Zahn, brought suit for damages and loss of means of support under section 14, article VI of the Dram-Shops Act, Ill.Rev.Stat. 1947, ch. 43, par. 135, against Joseph Muscarello, operator of a tavern, Karl and Lena Reidelmaeier, individually and as beneficiaries under a certain trust pertaining to the property in which the tavern owner was a tenant, and Victor A. Juric, individually and as trustee of said property. Trial by jury resulted in a verdict finding all defendants guilty and assessing damages in the sum of $5000.00. The court denied each defendant's motion for a directed verdict at the close of all the evidence, dismissed the cause as to Victor A. Juric as trustee but not individually, and entered a unit judgment on the verdict, from which defendants appeal.

As one of the two principal grounds for reversal it is urged that plaintiff failed to prove that Zahn's death was the proximate result of his intoxication, that the verdict of the jury was based upon speculation and cannot stand because it is not supported by competent proof, either direct or circumstantial, and that accordingly the court erred in denying defendants' motion for a directed verdict or for a judgment notwithstanding the verdict. It therefore becomes necessary at the outset to detail the evidence upon which the verdict was predicated. There is substantially no controversy between the parties as to the salient facts. At the time of the occurrence plaintiff lived with her husband at 1942 Wabansia avenue in Chicago. She was then 62 years of age, and he was 63. On Monday, November 5, 1945, Zahn, who was in good health, left his home at 7:30 in the morning, and worked that day at the Hercules Trunk Works, located at 1302 North Halsted street. He punched out at 4:30 P. M. His occupation was that of carpenter, at a wage of $1.10 per hour. November 5 was his pay day, and after work he received his salary check of $37.46. He then went to the tavern at 1300 North Halsted street, adjoining his place of employment, at that time operated by the defendant Muscarello, cashed his check there, and had a bottle of beer and a sandwich. Later that day, between 6:00 and 7:00 P. M., he was seen in the same tavern by plaintiff's witness Bourdes. He testified that he saw Zahn drinking, but did not know what he was drinking or how many drinks he had. He was of the opinion that Zahn was intoxicated. Plaintiff's witness Massie, who was Zahn's employer, saw him in the same tavern between 7:30 and 8:00 P. M. He saw Zahn drinking some beer, and observed an empty whiskey glass in front of him. He testified that Zahn knocked over some beer, ‘that he didn't seem to be able to control himself’, and that he didn't look normal. ‘To my way of thinking-maybe I am wrong-he looked to me like he was intoxicated.’

Before Zahn went to work for the Hercules Trunk Company he was employed in the construction of boats and earned about $300.00 a month. At the time of his death he owned a tugboat called the ‘Chicago,’ on which he sometimes slept. The boat was moored or tied up about 200 feet south of North avenue on the east bank of the Chicago River. There was a perpendicular retaining wall along the east bank of the river which was constructed of piling and planks, and extended three to five feet above the water. The top part thereof was level with the ground. To board the boat one stepped from the bank onto the deck. The boat was furnished with cooking and sleeping quarters. Zahn used this boat to pull barges, which at times gave him an additional revenue of several hundred dollars per month.

Reverting to the scene in the tavern, it appears that Massie, realizing Zahn's intoxicated condition, suggested taking him home. Bourdes testified that Zahn did not walk out of the tavern by himself, but required the active help and assistance of Massie; in fact, he stated that Massie was forced to lift Zahn by his shoulders and place him in an automobile; that Zahn was intoxicated and his actions indicated that he was not feeling well. Massie and Bourdes then drove him to the dock where Zahn's boat was tied. Arriving there, Massie helped him from the car. Massie described Zahn's physical condition after leaving the car as follows: ‘He walked weak to me; his legs seemed to buckle up under him.’ They walked about a block from the car to the boat. Bourdes remained behind in the car and waited for Massie to return. After Massie and Zahn stepped onto the boat the latter unlocked the door, entered the cabin and lit an oldstyle kerosene lantern. Massie remained there with him for about five minutes, and then returned to his car. Before leaving, Zahn told Massie that he was all right and that he was going to bed. Massie was the last person who talked to Zahn and the last to see him alive.

Tuesday morning, November 6, Zahn failed to report for work. Plaintiff testified that when he failed to come home with his pay check on Monday, she went to the boat on Tuesday, November 6, to look for him. In a prior deposition she had stated that Zahn was supposed to make a trip with another man to Mexico, and she was not concerned about his absence until Friday, November 9. Raymond Zahn, plaintiff's son, testified that he went to the boat Tuesday noon, November 6, after receiving a telephone call from his mother, observed the cabin of the boat unlocked, but did not find his father on the boat. On Wednesday, November 7, Raymond and his mother looked for Zahn at a near-by fish-house and in several taverns in the neighborhood, and failing to locate him, called the police on November 9. The Coast Guard, at the request of the police, then dragged the Chicago river, and found Zahn's body about 9:50 A. M., Saturday, November 10, a few feet west of the point where the boat was moored when he last went aboard it. The body was fully dressed with coat, pants and shoes, but there was no hat. Sixty-five cents were found in his trousers, but there was no paper money in his wallet. The police also found on the body a gold open-faced watch, with the hands stopped at 8:33-1/2. Massie had testified that he left Zahn on the boat about 8:30 P. M. The body when recovered had a strong odor, and one of the police officers testified that in his opinion it had been in the waters several days. From a photograph received in evidence, it appears there was no railing around the boat.

At the request of defendants the two following interrogatories were submitted to the jury, which they answered in the affirmative: Interrogatory No. 1-Did John Zahn come to his death in consequence of his intoxication on November 5, 1945; and Interrogatory No. 2-Was the intoxication of John Zahn the proximate cause of his death? In defendants' motions for judgment notwithstanding the verdict and for a new trial, they moved to set aside the answers to these special interrogatories. Their motions were denied.

Upon this evidence, defendants argue that several causes of death might be conceived which would be just as consistent with the evidence as the theory of death resulting from Zahn's original intoxication. It is suggested that he might have left the boat the morning of November 6, after he had recovered from his drunkenness, gone to other taverns in the vicinity, become reintoxicated and fallen from the boat that day or any day thereafter, in which event defendants would not be liable; that he might have had a heart attack and fallen from the boat; that a robber might have entered the boat, taken Zahn's money and pushed him overboard; that he might have committed suicide any day after November 5; and finally, that he might have been killed while on shore and his body thrown in the river. However, there is no evidence to support any of these theories. Zahn was never seen alive after 8:30 P. M. on November 5, and the watch found on his person stopped some three minutes after 8:30. The evidence discloses that Zahn was not a habitual drinker, and that he had been steady in his employment. There was no evidence which would permit of an inference that he continued in a brunken state for a period of days, or that he was robbed or murdered, or that he committed suicide. The decomposition of the body indicated that it had been in the river several days. All of these circumstances were submitted to the jury for their consideration, and we think there was sufficient evidence to justify a verdict for plaintiff, and the affirmative answers to the two interrogatories indicating that Zahn came to his death in consequence of his intoxication on November 5 and that his intoxication was the proximate cause of his death.

Defendants argue that the jury were obliged to guess or speculate as to these facts because the evidence was purely circumstantial. Courts have always considered it within the province of the jury, or any other trier of facts, to make reasonable inferences from established facts, and such permissible inferences will not be discarded by a reviewing court because other inferences might have been drawn from such established facts, unless the inferences drawn are unreasonable. Rosenfield v. Industrial Commission...