{ "id": 1578981, "name": "Edward J. Dembinski, Plaintiff-Appellant, v. F. & T. Corporation, a Corporation, Henry Nowak, Trustee Under Trust Agreement No. 1180, Henry Nowak, Individually, Henry F. Nowak, and John Truty, Defendants-Appellees", "name_abbreviation": "Dembinski v. F. & T. Corp.", "decision_date": "1970-04-27", "docket_number": "Gen. No. 53,232", "first_page": "112", "last_page": "122", "citations": [ { "type": "official", "cite": "124 Ill. App. 2d 112" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "226 NE2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "83 Ill App2d 170", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556297 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0170-01" ] }, { "cite": "219 NE2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "71 Ill App2d 434", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588044 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0434-01" ] }, { "cite": "143 NE 866", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "312 Ill 299", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5120427 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ill/312/0299-01" ] }, { "cite": "55 Ill App2d 220", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5284280 ], "year": 1965, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0220-01" ] }, { "cite": "175 NE2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "31 Ill App2d 222", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5227998 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0222-01" ] }, { "cite": "391 Ill 172", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2513012 ], "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill/391/0172-01" ] }, { "cite": "11 Ill2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2784724 ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0084-01" ] }, { "cite": "197 NE2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826151 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0400-01" ] }, { "cite": "225 NE2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "80 Ill App2d 281", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2561435 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/80/0281-01" ] }, { "cite": "208 NE2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "58 Ill App2d 312", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2601029 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/58/0312-01" ] }, { "cite": "61 NE2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "326 Ill App 84", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4939859 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ill-app/326/0084-01" ] } ], "analysis": { "cardinality": 789, "char_count": 16552, "ocr_confidence": 0.592, "pagerank": { "raw": 1.0140755943444645e-07, "percentile": 0.5429594543929009 }, "sha256": "6abd6ee6939af487f13b5ab0f3d0a6cf57f2ec44446e1155b98183c961d255ff", "simhash": "1:3e0c7490792505d3", "word_count": 2771 }, "last_updated": "2023-07-14T21:19:07.974938+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edward J. Dembinski, Plaintiff-Appellant, v. F. & T. Corporation, a Corporation, Henry Nowak, Trustee Under Trust Agreement No. 1180, Henry Nowak, Individually, Henry F. Nowak, and John Truty, Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nThis is a dramshop action for personal injuries inflicted by an alleged intoxicated person, whose intoxication, plaintiff contends, was caused in whole or in part by alcoholic liquor sold by defendants. Plaintiff appeals from a jury verdict and judgment in favor of defendants.\nOn appeal plaintiff contends prejudicial trial errors were committed in that (1) the trial court erroneously admitted prior statements of the intoxicated person as impeachment testimony and so instructed the jury; (2) the defendants tendered a police report in the presence of the jury, which was rejected by the trial court; and (3) improper comment by defense counsel was made in his closing argument.\nThe assailant, Stefan Nicpon, testified for plaintiff. The record indicates that he had a limited use and knowledge of the English language and at times had some difficulty in understanding questions. During his cross-examination it was suggested that he might understand better \u201cif we had a Polish interpreter.\u201d The court directed that the questions be given slowly and that he be given an opportunity to answer.\nNicpon\u2019s testimony showed that on July 8, 1966, he drank about four or five glasses, or more, of half wine and half water in his home. About 9:00 p. m., he went to defendants\u2019 restaurant, known as Nowak\u2019s, where he had a sandwich and purchased and drank at least two beers and two or three shots of cognac. He remained in the restaurant for about a half hour. When Nicpon left the restaurant he felt tired and wanted to go home. He stated, \u201cIt was a very hot day, and I am drunk.\u201d He walked for five minutes because \u201cI feel, you know, tired and I didn\u2019t feel so good because I was drunk. I was looking for some place to sleep.\u201d He arrived at a small triangular park where plaintiff Dembinski, Vincent Swiderski, and one Noga, since deceased, were sitting on a park bench. They were all acquaintances of Nicpon. He approached them and attempted to strike up a conversation with plaintiff. Plaintiff told him, \u201cIf you want to talk to me I talk to you later.\u201d After a brief exchange of words, plaintiff shoved Nicpon and started to strike and kick him. Nicpon said, \u201cthen he lift his legs and push me in my belt and starts to kick me . . . from the sidewalk .... I start, you know, defense myself. I pull out the knife and stab him with the knife.\u201d After the stabbing, Nicpon ran to a fire station approximately one block away and told the fireman to close the door because three men were chasing him. The witnesses who observed Nicpon running testified that he ran straight and did not fall down.\nOn cross-examination Nicpon testified that he had been plaintiff\u2019s neighbor and had known him for some time. He stated that if he had not been drunk, he never would have stabbed plaintiff. Also, when he was questioned about a statement taken from him by defendants\u2019 representatives at his home on October 30, 1967, the following took place:\nQ. \u201cDid you tell them that you did not feel drunk at the time of this incident?\u201d\nA. \u201cI don\u2019t remember. I could not tell him that because I was.\u201d\nA. \u201cThen I was looking, you know, because I didn\u2019t feel that drunk that I am tipping.\u201d\nQ. \u201cYou didn\u2019t feel drunk at all then?\u201d\nA. \u201cIt seems to me, but I was so tired, you know.\u201d Q. \u201cWere those questions asked of you and were those your answers ?\u201d\nA. \u201cMaybe they didn\u2019t understand me good.\u201d\nQ. \u201cIt could be that you said that though?\u201d\nMr. Douglas: \u201cObject.\u201d\nThe Court: \u201cQuestion and answer may stand. The answer is, \u2018No.\u2019 \u201d\nPlaintiff testified that when Nicpon approached him on the bench he \u201crealized there is a problem. I noticed that he was somewhat excited. He looked like an idiot or as drunk.\u201d He told Nicpon to leave him alone for awhile because he was busy talking to Swiderski. Nicpon wouldn\u2019t leave, so he pushed Nicpon with his foot, and Nicpon jumped back and quickly stabbed him. Nicpon then ran away very fast and in a straight line. Plaintiff did not smell anything on Nicpon\u2019s breath at any time.\nVincent Swiderski, a witness to the stabbing, testified that Nicpon was \u201cjust like wild, excited. I didn\u2019t know what was happening with him. He was red in his face.\u201d Nicpon ran away very fast and in a straight line. Nicpon was also \u201ckind of nervous\u201d at the beginning.\nDefendants\u2019 witnesses included the two police officers who had arrested Nicpon and a fire lieutenant who was present when Nicpon entered the fire station. Officer Partipilo had a conversation with Nicpon and could understand him. Nicpon was not nervous or excited. The officer was of the opinion that Nicpon was sober and further stated that he smelled no alcohol on Nicpon\u2019s breath. At the police station he made out an arrest slip marking Nicpon\u2019s condition as sober. He also made out a case report but put nothing in it as to intoxication. The arrest slip was offered into evidence but ruled inadmissible by the trial judge.\nOfficer Kilroy testified that he also spoke to Nicpon in the squad car and could understand him. Nicpon was \u201cpanting or breathing hard,\u201d but he could smell no alcohol. Nicpon did appear \u201crestless\u201d but in the opinion of the witness he was sober.\nJames Lynn, the fireman who was present when Nicpon ran into the fire station, testified that he asked Nicpon why he had stabbed plaintiff, and Nicpon answered \u201cbecause he kicked me.\u201d He did not smell any alcohol on Nicpon\u2019s breath and was able to understand him. He was of the opinion that Nicpon was sober.\nAlbert Levin, a court reporter who was present at the interrogation of Nicpon on October 30, 1967, was called by defendant for impeachment purposes and read from his notes, which included a statement by Nicpon that he \u201cdidn\u2019t feel drunk\u201d at the time of the occurrence; also, \u201cI must have been drunk because the whole time \u2014 I drank all the time \u2014 you know \u2014 then you don\u2019t feel so\u2014 sure, I was drinking.\u201d Levin further testified that Nicpon\u2019s speech was very poor, so that it was difficult to get the precise words that he used throughout the interview.\nOn the basis of the court reporter\u2019s testimony, the trial court overruled plaintiff\u2019s objection that there had been no impeachment of Nicpon as to drinking and gave defendants\u2019 instruction No. 10, as follows:\n\u201cThe credibility of a witness may be attacked by introducing evidence that on some former occasion he made a statement inconsistent with his testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.\u201d\nPlaintiff initially contends that defendants attempted to give the impression that Nicpon\u2019s testimony was wholly manufactured for the purpose of helping his friend Dembinski, and \u201ccounsel proceeded with a classical attempt to impeach Nicpon by a prior inconsistent statement. Actually, the alleged impeaching question was clearly ambiguous on its face, and, when taken in context, was not impeaching.\u201d Plaintiff asserts that it was prejudicially erroneous to admit the testimony of Levin. Plaintiff\u2019s authorities on this point include Reilly Tar & Chemical Corp. v. Lewis, 326 Ill App 84, 61 NE2d 290 (1942), and People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965). In Reilly Tar & Chemical Corp. v. Lewis, it is said that for statements to be admissible as impeachment they must meet the following requirements: \u201c(a) statements read as impeachment must be contradictory to and inconsistent with the testimony given in the trial; (b) such contradiction or inconsistency must be as to material matters; (c) the earlier statements must be read or shown to the witness, and (d) the witness must deny making the earlier statements.\u201d\nIn People v. Rainford, it is said (p 320):\n\u201cGenerally, a prior statement of a witness, in order to be capable of being proved for purposes of impeachment, must be materially inconsistent with his testimony. The test to be applied in determining inconsistency has been variously stated but basically is that the inconsistent statement must have a reasonable tendency to discredit the direct testimony on a material matter.\u201d\nPlaintiff further argues that Levin, the court reporter, admitted difficulty in understanding Nicpon, and that the alleged inconsistent statement was the result of a difficulty in expression and understanding. Plaintiff maintains that where an alleged inconsistent statement shows a difficulty in semantics and does not show a prior inconsistent belief, the better rule is to exclude the alleged impeaching statement.\nPlaintiff maintains that he was prejudiced when the trial judge gave defendants\u2019 instruction No. 10 dealing with impeachment by prior inconsistent statements. Plaintiff asserts that because there was no other attempt at impeachment, the instruction was predicated on the inadmissible statement made by Nicpon, and that instructions may not be predicated upon inadmissible testimony.\nDefendants contend that the jury could not have been-misled by the instruction even if the prior statements had, in fact, not been impeaching. They note that it was for the jury to determine if any of the prior statements in fact impeached Nicpon. Authorities include Michna v. May, 80 Ill App2d 281, 225 NE2d 391 (1967), where it is said (p 292):\n\u201cWhether testimony is credible or contradictory or whether it is impeached are generally matters for the trier of fact and its findings will not be disturbed unless they are manifestly against the weight of the evidence.\u201d\nAlso, People v. Tate, 30 Ill2d 400, 197 NE2d 26 (1964), at page 403:\n\u201cImpeachment of a witness by a prior contradictory statement is of course an accepted technique. As this court said in People v. Moses, 11 Ill2d 84, 87: \u2018Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Smith, 391 Ill 172, 176.) Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to that effect should be given upon request. . . .\u2019\u201d\nWe find no prejudicial error in the trial court\u2019s ruling on the alleged impeachment testimony and the giving of instruction No. 10. We agree with plaintiff that the alleged inconsistent statement of Nicpon shows a difficulty in semantics. However, we do not believe that the statement was prejudicial to plaintiff. Nicpon stated several times that he was drunk and, in substance, the statement corroborates Nicpon\u2019s court testimony. Also, the pretrial statement of Nicpon showed a sufficient inconsistency to warrant the giving of instruction No. 10, and if its giving was error, plaintiff was not prejudiced.\nConsidered next is plaintiff\u2019s contention that reversible error was committed by defendants tendering a police report in the presence of the jury. Plaintiff asserts, \u201cAfter interrogating Officer Partipilo as to his opinion concerning Nicpon\u2019s sobriety at the time of the occurrence, counsel for the defendant produced the officer\u2019s police reports, examined him as to their contents, and offered them in evidence, all in the presence of the jury.\u201d\nPlaintiff argues that plaintiff was forced to object in front of the jury, and it placed plaintiff in a prejudicial position before the jury and, although the trial judge did not admit the exhibit, he failed to take remedial action against the prejudice caused by requiring plaintiff\u2019s counsel to object. Plaintiff\u2019s authorities include Johnson v. Plodzien, 31 Ill App2d 222, 175 NE2d 560 (1961), where it is said (p 227):\n\u201cThe courts in this state have generally held that a police report is not admissible in corroboration of a party\u2019s trial testimony, and that the mere attempt to introduce such an exhibit may be considered reversible error.\u201d\nDefendants contend that no prejudicial error was committed in tendering the police report. They note that \u201call that the arrest slip could have shown was what already was in evidence as to the nature of the offense charged, the time and place, the victim\u2019s name, his assailant\u2019s name, addresses, and other vital statistics as to age, race, etc.\u201d Defendants further argue that the police reports were in fact admissible to show \u201cthat the officer was under a duty at the time to determine Nicpon\u2019s condition for sobriety or intoxication, and that he performed his duty and made that determination contemporaneously with the arrest. These circumstances were relevant to the weight to be given his opportunity to observe.\u201d\nWe are not persuaded that defendants\u2019 reason for tendering the police report was proper in this case. This practice has been repeatedly condemned and has been held many times to be reversible error. In the instant case we think it was improper to make the offer into evidence in front of the jury. This should have been explored with the court out of the presence of the jury. However, the record shows that the officer had been interrogated by defendant, without objection, as to the contents of a case report and an arrest slip, and that he had marked the arrest slip to show that Nicpon was sober at the time he had arrested him. In addition to the officer, several other witnesses testified that Nicpon was sober, and although we do not approve of the offering of the arrest slip or report, we do not think its impropriety was of such substance here as to be prejudicial to the rights of the plaintiff. Black v. DeWitt, 55 Ill App2d 220, 227, 204 NE2d 82C (1965).\nPlaintiff finally contends that defendants\u2019 counsel made improper and prejudicial comments in his closing argument. Defendants\u2019 counsel stated, \u201cIt seems to me, the defendant that should be here is Nicpon.\u201d Plaintiff argues, \u201cNicpon\u2019s potential liability to the plaintiff was not in issue in this case so that this argument had no place in the closing arguments. . . . this argument violated the limits imposed on closing argument in two respects: (a) it exceeded the issues in the case, and (b) it was a misstatement of the law in that there was no necessary connection between the claim against these defendants and the claim against Nicpon.\u201d Also, defendants\u2019 counsel inferred that Nicpon had been in trouble before.\nAuthorities cited include Mattice v. Klawans, 312 Ill 299, 143 NE 866 (1924), where it is said (p 310):\n\u201cWhile it is true that an attorney may in the course of a trial inadvertently make improper remarks, the prejudicial effect of such a statement is usually removed where the court promptly sustains an objection thereto and the attorney makes retraction in good faith; but where the record shows, as it does in this case, that an attorney has deliberately and repeatedly indulged in prejudicial argument to the jury, the effect of such misconduct can not be measured, and the only remedy is to grant a new trial.\u201d\nDefendants contend that plaintiff opened the door to comment on Nicpon\u2019s character when he asked Nicpon on direct examination, \u201cAnd had you ever done anything like that before?\u201d\nIn considering this question, we think the remarks made in Hopwood v. Thomas Hoist Co., 71 Ill App2d 434, 219 NE2d 76 (1966), are in point. There the court said (pp 443-4):\n\u201cThe purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel. It is within the function of an advocate to argue that the client is not liable, which was the real purport of the allegedly improper - argument in the instant case. . . . When arguing within the limits of admitted or uncontroverted facts, counsel should enjoy the greatest latitude consistent with decorum.\u201d\nWe conclude that the comments in question were not improper in this case. See Schneider v. Kirk, 83 Ill App2d 170, 226 NE2d 655 (1967).\nAfter examining this record in detail, we conclude that no prejudicial error was committed, and for the reasons stated the judgment is affirmed.\nAffirmed.\nBURMAN, P. J. and ADESKO, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Lloyd P. Douglas, of Chicago (Lloyd P. Douglas and Gerald M. Chapman, of counsel), for appellant.", "McKinley, Price & Fako, of Chicago (Edwin A. Strugala, of counsel), for appellees." ], "corrections": "", "head_matter": "Edward J. Dembinski, Plaintiff-Appellant, v. F. & T. Corporation, a Corporation, Henry Nowak, Trustee Under Trust Agreement No. 1180, Henry Nowak, Individually, Henry F. Nowak, and John Truty, Defendants-Appellees.\nGen. No. 53,232.\nFirst District, First Division.\nApril 27, 1970.\nLloyd P. Douglas, of Chicago (Lloyd P. Douglas and Gerald M. Chapman, of counsel), for appellant.\nMcKinley, Price & Fako, of Chicago (Edwin A. Strugala, of counsel), for appellees." }, "file_name": "0112-01", "first_page_order": 118, "last_page_order": 128 }