{ "id": 1581477, "name": "Fred Maynard, Plaintiff-Appellant, v. Irving Davis Company, Defendant-Appellee", "name_abbreviation": "Maynard v. Irving Davis Co.", "decision_date": "1970-03-11", "docket_number": "Gen. No. 53,598", "first_page": "28", "last_page": "34", "citations": [ { "type": "official", "cite": "122 Ill. App. 2d 28" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "190 NE2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill App2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452188 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0217-01" ] }, { "cite": "331 Ill App 64", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5052659 ], "opinion_index": 0, "case_paths": [ "/ill-app/331/0064-01" ] }, { "cite": "346 Ill App 144", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2431444 ], "opinion_index": 0, "case_paths": [ "/ill-app/346/0144-01" ] }, { "cite": "132 NE2d 437", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "9 Ill App2d 145", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5153174 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-app-2d/9/0145-01" ] }, { "cite": "108 Ill App2d 379", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595869 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0379-01" ] }, { "cite": "229 NE2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "37 Ill2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "253 NE2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill App2d 173", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1587095 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/116/0173-01" ] } ], "analysis": { "cardinality": 528, "char_count": 9364, "ocr_confidence": 0.599, "pagerank": { "raw": 6.491595668471736e-08, "percentile": 0.39934586919932397 }, "sha256": "0e6421b05cf62afa5355af5ffa71e8a720274228c1e0141de007a598e9262a27", "simhash": "1:b879ca082e45d14f", "word_count": 1600 }, "last_updated": "2023-07-14T21:02:54.032479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fred Maynard, Plaintiff-Appellant, v. Irving Davis Company, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nPlaintiff\u2019s cause of action against Bill McMillan, a co-defendant, was based on a battery committed by Bill McMillan against him. Plaintiff\u2019s claim against the defendant was by reason of Bill McMillan\u2019s intoxicated condition which was allegedly brought on either in whole or in part by the sale or gift of alcoholic beverages by the defendant to Bill McMillan. (Illinois Dram Shop Act, Ill Rev Stats 1965, c 43, \u00a7 135.) The jury returned a verdict in favor of the plaintiff and against the defendant, Bill McMillan, in the sum of $6,750 and also returned a verdict of not guilty in favor of the defendant Irving Davis Company (hereinafter referred to as the defendant).\nPlaintiff appeals from an order denying his motion for a directed verdict against defendant and from the order denying his motion for judgment in his favor notwithstanding the verdict of the jury. On appeal, plaintiff also urges that the trial court improperly instructed the jury by refusing to give his instruction No. 20.\nTestimony of Fred Maynard, the plaintiff:\nOn Sunday, May 22, 1966, he went to Santa Fe Park to watch stock car races. As he was watching the races, he had a conversation with a girl and asked her if she wanted a beer. He bought her a beer and they sat down at a nearby table. The beer was in a milk shake size dixie cup. They sat at this table for ten or fifteen minutes. Bill McMillan\u2019s name was never mentioned during the conversation. He had seen McMillan race before but he did not know him personally.\nWhen he first saw McMillan, the girl was still sitting next to him. McMillan walked over to them along with two other fellows. He observed that McMillan had bloodshot eyes and was pale. The girl introduced him to McMillan. McMillan\u2019s conversation with him was not friendly. The girl remained seated next to him.\nMcMillan left after this first conversation and walked over to the beer stand and bought a beer. He saw McMillan drink it. He was still talking to the girl while McMillan drank his beer. After McMillan finished his beer he again walked over to the table and said a couple of words to the girl. He did not remember what was said. McMillan left and bought another beer.\nAfter finishing the second beer, McMillan and the other two fellows came back over to him. As McMillan approached him this third time, he noticed that McMillan \u201clooked real mad and he was sort of weaving when he walked.\u201d The girl was sitting next to him. McMillan said, \u201cYou better get out of here, fellow,\u201d and then hit him in the face. His nose and face were bleeding. He saw McMillan hit the girl in the face with his fist before he went to the washroom to clean up. After he cleaned up, he immediately left the racetrack. In his opinion McMillan was intoxicated the first time he saw him.\nHe then described his injuries and doctor\u2019s fees.\nOn cross-examination he testified that McMillan \u201chad gotten pushed out of the race and he was really mad.\u201d Another driver had forced him out in some illegal manner. He had seen this happen. The girl also told him that McMillan had been forced out of the race.\nTestimony of Carl Werner, called by the plaintiff:\nHe was employed as a bartender by the defendant during May 1966. On May 22, 1966, he did not see any altercation between plaintiff and defendant. He knew Bill McMillan but not personally. He did not know the plaintiff well enough to talk to him. If he was tending bar on May 22 at Santa Fe Park, he probably sold McMillan some beer.\nHe did not have a clear memory of May 22, 1966. He could not remember what day in the week May 22, 1966 was, nor could he specifically remember selling Bill McMillan any beer that night. He could not recall seeing any fight.\nOpinion\nPlaintiff contends that the trial court erred in refusing to grant his motions for a directed verdict or judgment notwithstanding the verdict. He argues that a review of all of the testimony pertinent and relative to the issue of defendant\u2019s liability is uncontradicted and unimpeached and, therefore, the trial court should have directed a verdict in his favor at the close of all the evidence or, in the alternative, granted his motion for judgment notwithstanding the verdict.\nIn Galarza v. Melter, 116 Ill App2d 173, 253 NE2d 469, the trial court directed the jury to find in favor of plaintiff on the question of liability when defendant did not proffer any evidence but rested after plaintiff\u2019s case was presented. This court reversed and remanded the cause holding that \u201cdisputed inferences could have been drawn from the evidence and the issue of liability should have been submitted to the jury.\u201d We found that:\n\u201cA directed verdict is proper if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria Eastern R. R. Co., 37 Ill2d 494, 229 NE2d 504 (1968). In Ladd v. Ruck, 108 Ill App2d 379 (1969), the court stated at page 382:\n\u201c \u2018The Pedrick rule does not require that verdicts be directed or motions notwithstanding verdicts be granted merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff.\u2019\n\u201cFacts may be undisputed or a defendant may have failed to introduce evidence in his behalf, but it does not follow that issues are, therefore, uncontroverted. Ladd, supra. In Genck v. McGeath, 9 Ill App2d 145, 132 NE2d 437 (1956), where defendant offered no evidence, the court said at page 153:\n\u201c \u2018Even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn, the question is one for the jury. Panczko for Use of Enright v. Eagle Indemnity Co. of New York, 346 Ill App 144; Minters v. Mid-City Management Corp., 331 Ill App 64.\u2019 \u201d See also Ladd, supra.\nIn the instant case, the facts on which plaintiff relies do not necessarily lend themselves to the conclusion that McMillan was intoxicated, even though he testified that in his opinion and from his observations, McMillan was intoxicated. The jury, basing their conclusion on the same facts, could conclude otherwise. The jury might reasonably have inferred from plaintiff\u2019s evidence (1) that Bill McMillan\u2019s bloodshot eyes and pale features were caused by his having just raced; (2) that Bill McMillan was not intoxicated from drinking beer but was rather \u201cmad\u201d and angry at being illegally forced out of the race by another driver; (3) that the girl with the plaintiff was Bill McMillan\u2019s girl friend since she introduced McMillan and the plaintiff and at the first confrontation defendant acted unfriendly and \u201csmart\u201d toward plaintiff; and (4) that McMillan was provoked by the conduct of his girl friend since he had some words with her and struck her in the face.\nThe cause was properly submitted to the jury and its verdict is supported by the evidence. Therefore, we find that the trial court properly denied plaintiff\u2019s motions for a directed verdict and judgment notwithstanding the verdict.\nPlaintiff also contends that the trial court erred in refusing to give his jury instruction No. 20, IPI No. 5.01, which if given would have informed the jury that it could infer that testimony of witnesses not called would be adverse if the witnesses were under the control of the party and if the witnesses were not equally available to the adverse party. Plaintiff argues that this instruction was tendered because defendant\u2019s counsel repeatedly stated in his opening and closing arguments that the defendant was not present at the time of the occurrence and knew nothing about it, but at no time did the defendant produce any agent, servant, employee or officer of the company to testify that they knew nothing about this incident.\nFrom our review of the record, the only employee of the defendant who may have served beer to McMillan and plaintiff during the evening of May 22, 1966, was Carl Werner, and he was called as a witness for the plaintiff. However, Werner testified that he did not see any altercation between the plaintiff and McMillan, nor could he specifically remember the incidents of May 22, 1966, including the serving of beer to McMillan.\nWithin this record the plaintiff has failed to show that any other employee (besides Werner), officer or agent employed by the defendant was present or had any knowledge relevant to the plaintiff\u2019s cause of action. Furthermore, there is no showing by plaintiff that any witness or witnesses having relevant knowledge of this occurrence were within defendant\u2019s power to produce at the time of trial and that defendant failed to produce them without justification. The trial court should have a wide discretion in the giving of this instruction (Hildebrand v. Baltimore & O. R. Co., 41 Ill App2d 217, 190 NE2d 630) and we find that in the instant case the trial court properly exercised its discretion in refusing to give the requested instruction.\nThe judgment is affirmed.\nAffirmed.\nSTAMOS, P. J. and ENGLISH, J., concur.", "type": "majority", "author": "MR. JUSTICE DRUCKER" } ], "attorneys": [ "Karno & Schey, of Chicago (Alan L. Jonas, of counsel), for appellant.", "Stanton & Healy, of Chicago (Edwin A. Strugala, of counsel), for appellee." ], "corrections": "", "head_matter": "Fred Maynard, Plaintiff-Appellant, v. Irving Davis Company, Defendant-Appellee.\nGen. No. 53,598.\nFirst District, Fourth Division.\nMarch 11, 1970.\nKarno & Schey, of Chicago (Alan L. Jonas, of counsel), for appellant.\nStanton & Healy, of Chicago (Edwin A. Strugala, of counsel), for appellee." }, "file_name": "0028-01", "first_page_order": 34, "last_page_order": 40 }