Murray v. Richter

Mr. JUSTICE ADESKO delivered the opinion of the court: A factual statement is necessary. Helen C. Murray, one of the plaintiffs was an unemployed widow, 39 years of age. About 9 p.m., on Saturday, March 28, 1970, she went to a tavern called the Cyprus where she stayed for an hour. Later, at 10 p.m. she went to defendant Richter’s tavern called Bea’s Lounge. Richter was not present. There were seven or eight people on the premises. She left there to get something to eat and returned about 10:30 p.m. Bea’s Lounge had a big bar with 30 to 40 stools. She had a drink or two at the bar while she and the bartender watched a movie on television. About midnight the seven or eight people left. Three young men in their twenties came in about 1 a.m. Shortly thereafter two of their friends came. They were all motorcycle-type men. All of them drank several beers. Helen Murray testified, “They were having a discussion and it kind of worried me. I had a sense about it.” She asked the bartender, “Do you think you need any help?” He answered, “No, I’m not supposed to serve them but they have been here before. They’re okay.” Two of the men came to wheré Helen Murray sat and took turns drinking beer from her glass. When she protested, one of them grabbed her by the hair and pulled her from the bar stool on to the floor. They tugged at her clothes and used a knife to cut and remove all of her clothes. She was nude and they poured beer all over her. She was then dragged to a shuflleboard. They placed her on top of it, poured more beer over her and one of them “tried to put his thing in her mouth and hit her with his fist * 81 V’ Charles W. Tomecek, the other plaintiff, drove to Bea’s Lounge after midnight of March 28,1970, opened the door and was told it was closed. He came back and opened the door again. Someone inside said: “Well you asked for it. Come on in.” Tomecek saw Mrs. Murray on the shuffleboard nude and one of the men was beating her with a motorcycle chain. Tomecek went to the bar and ordered a drink. The men wanted him to buy them a drink which he did. When he tried to get up to go to the phone, one of them took a gun out of his pocket, saying, “Try it and I’ll shoot you dead.” They then ordered Tomecek to take off his clothes and have intercourse with Mrs. Murray. He could not do it so they beat him with the motorcycle chain and told him to “start eating her” while they were pouring beer on her. The motorcycle gang then fled after taking *85 from Tomecek and *17 from Mrs. Murray. They were arrested and Mrs. Murray recognized them in court. On cross-examination, Mrs. Murray was shown her deposition wherein she was asked, “How many drinks did they have from the time they walked in, went to the back of the bar and walked up to you?” She answered, “I believe the first three, the bartender served them twice and then the other two, once or twice.” Plaintiffs brought this action under the Dramshop Act (Ill. Rev. Stat. 1971, ch. 43, par. 135) against Eugene Richter, d/b/a Bea’s Lounge, to recover damages for personal injuries sustained as a result of the alleged intoxication of the assailants caused by drinks served at defendant’s tavern. Verdicts were returned by a jury awarding Mrs. Murray *20,000, reduced to the statutory limit of *15,000 and *7,500 to Charles Tomecek. The following issues are presented for review: (1) Did the trial judge err in permitting a police officer to testify as to his opinion as to the stability of the bartender, and did plaintiffs’ counsel compound the above error by repetition of testimony solicited from witnesses regarding the bartender’s alleged blameworthiness in serving the assailants in the first instance? (2) Did plaintiff Tomecek contribute to his own injury by ignoring signs of danger and injury to someone and himself and is he entitled to recover under the Dramshop Act? The only issue under the Dramshop Act was whether defendant by his employee, Joe the bartender, served the assailants beer in such quantities as to cause their intoxication and whether their criminal misconduct occurred while they were so intoxicated or whether their victims’ behavior occurred independently of any intoxication for which the defendant was legally responsible. Section 14 of article VI of the Dramshop Act provides as follows: “Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors.” (Ill. Rev. Stat. 1971, ch. 43, par. 135. Subsequent references to the Act refer to the Dramshop Act.) There is no evidence that defendant himself, or his bartender caused plaintiffs’ injuries, or that they acted wilfully in initially serving plaintiffs’ assailants beer. Counsel for plaintiffs was allowed to elicit from one of the police officers his opinion that the bartender, when the officer saw him that morning, was unstable and that the officer’s opinion was based on prior unrelated events or incidents. Although defense counsel objected, the trial judge allowed the officer to testify. Thus, the officer improperly testified concerning the bad character of the bartender, as to prior incidents as well as to the day in question. The jury could infer that the defendant was negligent in his hiring of the bartender. Once the assailants took charge and after they threatened to use a gun, further drinks were served under threat, fear and duress. Neither the bartender’s behavior nor his intoxication was in issue under the pleadings. It was not the bartender’s intoxication that was the basis for the cause of action under the Dramshop Act. Plaintiffs do not contest the general proposition that the negligence of a defendant is not at issue in a Dramshop action. Where liability is close so that a jury might have returned a verdict for either party, the trial must be conducted properly to avoid undue influencing the jury. Both v. Nelson, 31 Ill. 2d 511, 514, 202 N.E.2d 404. On the day here involved, plaintiff Tomecek got off from work at midnight, went to a grill for a hamburger, then to a lounge for a beer and then decided to drive to Bea’s Lounge. As he opened the door, one of the motorcycle men said to him, “It’s closed.” Tomecek then walked to the tavern next door and finding it closed returned to Bea’s Lounge. As he opened the door, one of the motorcycle men said: “Well, you asked for it. Come on in.” He could have left the place but chose to proceed beyond the door. He saw Helen Murray nude on the shuffleboard and one of the motorcycle men beating her with a chain. It was obvious that Tomecek, exercising ordinary prudence, should have sensed danger. He chose to stay. It is our opinion that he has no cause of action against the defendant. We believe that the erroneous rulings of the trial court were sufficient to deprive defendant of a fair trial and we reverse and remand the cause of plaintiff Helen C. Murray for a new trial. As to Charles W. Tomecek, we reverse the judgment entered in his favor. Judgment reversed and remanded; judgment reversed. BURMAN, J., concurs.