{ "id": 5180763, "name": "Caroline Kiriluk, Appellee, v. Isadore Cohn and Sam Cohn d/b/a Northwestern Liquor Company, Appellants", "name_abbreviation": "Kiriluk v. Cohn", "decision_date": "1958-01-07", "docket_number": "Gen. No. 47,091", "first_page": "385", "last_page": "394", "citations": [ { "type": "official", "cite": "16 Ill. App. 2d 385" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "387 Ill. 77", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2497052 ], "opinion_index": 0, "case_paths": [ "/ill/387/0077-01" ] }, { "cite": "297 Ill. App. 37", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5620072 ], "opinion_index": 0, "case_paths": [ "/ill-app/297/0037-01" ] }, { "cite": "295 Ill. App. 598", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3193451 ], "opinion_index": 0, "case_paths": [ "/ill-app/295/0598-01" ] }, { "cite": "83 Ill. 56", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2661379 ], "opinion_index": 0, "case_paths": [ "/ill/83/0056-01" ] }, { "cite": "77 Ill. 593", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821766 ], "opinion_index": 0, "case_paths": [ "/ill/77/0593-01" ] }, { "cite": "303 Ill. App. 630", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3344713 ], "opinion_index": 0, "case_paths": [ "/ill-app/303/0630-01" ] }, { "cite": "320 Ill. App. 40", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4983095 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0040-01" ] }, { "cite": "395 Ill. 487", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2469098 ], "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill/395/0487-01" ] }, { "cite": "316 Ill. App. 661", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3392712 ], "opinion_index": 0, "case_paths": [ "/ill-app/316/0661-01" ] }, { "cite": "309 Ill. App. 397", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3377177 ], "opinion_index": 0, "case_paths": [ "/ill-app/309/0397-01" ] }, { "cite": "94 Ill. 374", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2727111 ], "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill/94/0374-01" ] }, { "cite": "88 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5339871 ], "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill/88/0312-01" ] }, { "cite": "284 Ill. App. 493", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3159297 ], "opinion_index": 0, "case_paths": [ "/ill-app/284/0493-01" ] }, { "cite": "315 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2437682 ], "opinion_index": 0, "case_paths": [ "/ill/315/0293-01" ] } ], "analysis": { "cardinality": 696, "char_count": 12210, "ocr_confidence": 0.525, "pagerank": { "raw": 1.411303347633161e-07, "percentile": 0.6470037442337372 }, "sha256": "82e9a2e3ad576707b98b9c9833f33775c498f8f081c01d0053c0664eebc34969", "simhash": "1:3be64eada951063b", "word_count": 2039 }, "last_updated": "2023-07-14T20:24:43.680417+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LEWE and MURPHY, JJ., concur." ], "parties": [ "Caroline Kiriluk, Appellee, v. Isadore Cohn and Sam Cohn d/b/a Northwestern Liquor Company, Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is an action under the Dramshop Act (Ch. 43, \u00a7 135, et seq., Ill. Rev. Stat. 1949), by a widow, to recover damages for loss of support as a consequence of the intoxication and death of her husband, whom she shot and killed. The verdict and judgment were for plaintiff for $10,000. Defendants have appealed.\nThe defendants pose the issue here dramatically as follows: \u201cAs a matter of law it is improper to give the plaintiff a $10,000 reward for shooting her husband.\u201d This over simplification begs the real question, whether the trial court erred in refusing to direct a verdict for defendants on the ground that plaintiff was not an \u201cinnocent suitor\u201d within the meaning of the Dramshop Act.\nOn this question of law we take only the evidence favorable to plaintiff, draw inferences therefrom most strongly in her favor, disregard contrary and contradictory evidence, and decide whether there is any evidence to show that she was entitled to recover. Hunter v. Troup, 315 Ill. 293; Mahan v. Richardson, 284 Ill. App. 493.\nThe decedent was an habitual drunkard and had been drinking heavily for about ten days and nights before August 23, 1949. When drunk he \u201cslapped\u201d plaintiff \u201caround\u201d and a few months prior to the shooting he had threatened her with a knife, and restraint had been necessary to prevent him from setting fire to the furnishings in the home. When drunk he was abusive and \u201cused foul language, stuff like that,\u201d and had threatened several times to kill plaintiff.\nThe night before the shooting plaintiff went to defendants\u2019 store and tried to induce the decedent to return home. He would not come with plaintiff but did arrive home about \u201cthree o\u2019clock, he started arguing, pushed me around, and he was arguing about two hours like that.\u201d The next morning, after serving two of her children breakfast, plaintiff laid down in her daughter\u2019s room. She was awakened by decedent, who started \u201cchoking\u201d her and said he would \u201cfinish\u201d her. He chased her about the apartment and eventually into the kitchen, where he threatened \u201cI got to kill you today ... I am going to kill you now.\u201d He grabbed a chair, lifted it, and plaintiff \u201cmust have shot, I don\u2019t remember that.\u201d\nDefendants\u2019 claim that the evidence of prior threats was inadmissible and tended to inflame the jury against them. We think the evidence was admissible because the overt act in the kitchen as well as decedent\u2019s conduct immediately preceding, could reasonably indicate to plaintiff decedent\u2019s purpose to carry the prior threats into effect. Cummins v. Crawford, 88 Ill. 312, 317; Forbes v. Snyder, Admx., 94 Ill. 374, 377.\nPlaintiff\u2019s burden was to prove that she was injured in her means of support in consequence of the intoxication of decedent, to which defendant contributed in whole or in part. There is proof of the decedent\u2019s contribution to her support and of her loss of that contribution as a result of his intoxication, which brought on his death. There is evidence that defendants contributed to the intoxication. We think this was enough to bring the case to the jury, unless the evidence disclosed that plaintiff was not an \u201cinnocent suitor.\u201d\nWe cannot say as a matter of law that plaintiff was not an \u201cinnocent suitor\u201d in the sense that term is used in James v. Wicker, 309 Ill. App. 397, and Forsberg v. Around Town Club, 316 Ill. App. 661. In the Forsberg case, the plaintiff \u201cbrought the injuries upon himself\u201d by buying drinks for his assailants after he observed their drunkenness, and after they had assaulted him. In the James case, the plaintiff did not purchase liquor but was a \u201cwilling party,\u201d who participated in the drinking in a tavern. Neither case applies to preclude plaintiff\u2019s recovery here. She was an \u201cinnocent suitor\u201d if she shot her husband in self-defense and did not help to bring about his habitual drunkenness or his drunken condition which brought about his death.\nThe killing of a human being in necessary self-defense is justifiable homicide (Ill. Rev. Stat., 1949, Chap. 38, par. 366), and self-defense requires that the danger be so urgent and pressing that in order to save life or great bodily harm, the killing be \u201cabsolutely necessary,\u201d and it must appear that the decedent was the assailant or that the slayer really and in good faith tried to decline further struggle before the killing (par. 367). The Supreme Court has held that \u201cthe true test is what the defendant believed was necessary, acting as a reasonable person, not whether the jury believed from the evidence that it was necessary or apparently necessary.\u201d People v. Arcabascio, 395 Ill. 487, 498. Tbe same test applies in the instant case with respect to plaintiff as it applied to Arcabascio in the criminal case. Germolus v. Sausser, 85 N. W. (Minn.) 946, 947.\nOn the evidence we have related hereinabove, we think the jury could properly find that plaintiff shot in self-defense, and we cannot say, therefore, that she was not an innocent suitor. Whether she should have left the apartment while he was chasing her, or should have called for help, were matters of defense. The same is true of the question whether she provoked the tragic event by threatening to go with decedent if he left the house for more whiskey. It is also a matter of defense whether her finding and loading the revolver and holding it hidden from decedent for twenty minutes before shooting him made her not an \u201cinnocent suitor.\u201d All reasonable men might not agree on the answers to these questions. Some might think that she may have feared to call for help or to leave the apartment unless to go with him if he went out for drink, and she may have hidden the revolver with a prudent hope that decedent would desist.\nPlaintiff here was not like the plaintiff in Douglas v. Athens Market Corp., 320 Ill. App. 40, an active participant in causing decedent\u2019s intoxication. She had previously warned defendants not to sell her husband liquor and had stopped delivery of beer to the home. We cannot decide that she provoked the injury to her support or was a willing agent in procuring her husband\u2019s intoxication, as in Bowman v. O\u2019Brien, 303 Ill. App. 630. Nor does Reget v. Bell, 77 Ill. 593, apply, since here there is evidence of decedent\u2019s habitual drunkenness and threatening quarrelsomeness, and there was not that evidence in the Reget case. Furthermore, plaintiff could reasonably fear harm if she disposed of decedent\u2019s liquor. And plaintiff\u2019s conduct here cannot he compared to that of the assailant, McGraw, in Shugart v. Egan, 83 Ill. 56.\nPlaintiff was not required to prove that she was free from contributory negligence, but she was required to make proof that the injury to her means of support, to-wit: her husband\u2019s death, was the proximate result of the defendants\u2019 contribution to decedent\u2019s intoxication. There is evidence that plaintiff and her children protested to defendants about their selling liquor to decedent. We think the most favorable inference from this is that defendants knew there was family concern about decedent\u2019s drinking, and they were bound to foresee that if they continued selling decedent liquor the family concern might be realized in family harm. The jury could therefore infer that decedent\u2019s death would not have occurred had he not been intoxicated, and accordingly the intervention of plaintiff\u2019s act, the shooting, did not break the chain of events which flowed from the sale of liquor. Jones v. Keilbach, 295 Ill. App. 598.\nWe conclude on this phase of the case that decedent\u2019s intoxication was the proximate cause of the injury (Haw v. 1933 Grill, Inc., 297 Ill. App. 37) to the means of the support of plaintiff, an innocent suitor, who killed decedent in what appeared to her as a necessary defense against death or great bodily harm.\nDefendants claim prejudice by reason of the trial court\u2019s refusal to direct a verdict, or otherwise dispose of the \u201chabitual intoxication\u201d theory, and evidence under it, which plaintiff\u2019s complaint joined with the \u201cin consequence\u201d theory. We see no prejudicial error in this respect. The testimony of decedent\u2019s habitual drunkenness was relevant to show the progressive state of mind of decedent while intoxicated. The jury was not instructed on the habitual drunkenness theory, and we think this effectively disposed of the theory. The proof under the \u201cinconsequence theory\u201d supports the verdict and accordingly ve cannot attribute the verdict to prejudice.\nWe see no error either in the introduction of mortality tables for use as a basis of computing the extent of the injury to plaintiff\u2019s loss of support. The tables are competent in actions for personal injuries. Avance v. Thompson, 387 Ill. 77. We see no reason why, under the instant facts, they should not also be admissible in this case.\nDefendants rely chiefly on Avance v. Thompson, for their claim that even if the mortality tables were admissible, prejudicial error was committed because of the absence of an instruction carefully explaining to the jury the use of the tables. In the Avance case the mortality tables were introduced and the jury was instructed that in assessing damages it should consider the amount of earnings plaintiff would lose in the future and determine the present cash value of these earnings, making allowance for the earning power of money. The court in criticizing the instruction said (p. 84) that care should be taken in instructing the jury about the use of the mortality table, and the jury should be told that life expectancy should not be multiplied by annual earnings because this would permit a plaintiff an award without consideration of other circumstances, which could reduce the loss; and that the \u201cuse alone\u201d of mortality tables has such probability to confuse that a failure to explain their application would prejudice the defendants. But the court also said it would not reverse the case before it on that basis alone.\nIn the instant case it is clear that the jury did not use the mortality tables alone in fixing damages. The testimony showed decedent\u2019s annual income was about $1,100, and the table showed a life expectancy of nearly eighteen years. Multiplying these two factors would far exceed the verdict which was rendered. The dictum in Avance v. Thompson is not applicable.\nThere is no merit to the contention that defendants were prejudiced in the giving of plaintiff\u2019s instruction No. 3, which was a partial quotation from the Dramshop Act, which referred to the right of action by husband, wife, child, parent, etc., and also referred to damages recovered by a minor. Defendants argue that the jury could have been misled to think that the action included a claim for the support of plaintiff\u2019s children. The only minor child testified that she did not have a claim of her own for loss of support. The evidence showed that the other child living with plaintiff was no longer a minor and contributed $25 per month to the family support. Furthermore, the jury was sufficiently instructed so as to plainly indicate that the cause of action was by plaintiff alone for her own loss. We see no error either in the giving of plaintiff\u2019s peremptory instruction No. 6. We think it contains substantially all the necessary elements.\nFinally, we see no abuse of discretion in the trial court\u2019s limiting of the cross-examination by defendants\u2019 counsel. Two instances are offered for our consideration. In the first instance, it was not material to ask whether for five years decedent \u201capparently\u201d was not drinking at defendants\u2019 store. In the second instance, the objection was properly sustained because the question whether impeaching testimony was \u201ctrue\u201d was for the jury.\nFor the reasons given the judgment is affirmed.\nAffirmed.\nLEWE and MURPHY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE KILEY" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (Edwin S. Mc-Keown, Richard Valentine, and Richard E. Mueller, of counsel) for appellants.", "Joseph Barbera, of Chicago (Charles D. Snewind, of counsel) for appellee." ], "corrections": "", "head_matter": "Caroline Kiriluk, Appellee, v. Isadore Cohn and Sam Cohn d/b/a Northwestern Liquor Company, Appellants.\nGen. No. 47,091.\nFirst District, Second Division.\nJanuary 7, 1958.\nReleased for publication April 2, 1958.\nLord, Bissell & Brook, of Chicago (Edwin S. Mc-Keown, Richard Valentine, and Richard E. Mueller, of counsel) for appellants.\nJoseph Barbera, of Chicago (Charles D. Snewind, of counsel) for appellee." }, "file_name": "0385-01", "first_page_order": 413, "last_page_order": 422 }