{ "id": 5293696, "name": "Anna M. Coss, as Administratrix of the Estate of Jose Coss, Deceased, Plaintiff-Appellee, v. Stanley Magdziasz, et al., Defendants. On Appeal of Walter H. Colewell, Appellant", "name_abbreviation": "Coss v. Magdziasz", "decision_date": "1965-11-04", "docket_number": "Gen. No. 49,619", "first_page": "40", "last_page": "44", "citations": [ { "type": "official", "cite": "65 Ill. App. 2d 40" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "264 Ill App 544", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3295163 ], "opinion_index": 0, "case_paths": [ "/ill-app/264/0544-01" ] }, { "cite": "338 US 827", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3950374, 3949223, 3939501, 3942671, 3949171, 3950109 ], "opinion_index": 0, "case_paths": [ "/us/338/0827-06", "/us/338/0827-01", "/us/338/0827-05", "/us/338/0827-02", "/us/338/0827-04", "/us/338/0827-03" ] }, { "cite": "85 NE2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "403 Ill 183", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2620951 ], "opinion_index": 0, "case_paths": [ "/ill/403/0183-01" ] }, { "cite": "98 NE2d 757", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "409 Ill 195", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310182 ], "opinion_index": 0, "case_paths": [ "/ill/409/0195-01" ] }, { "cite": "142 NE 194", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "310 Ill 515", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5107464 ], "opinion_index": 0, "case_paths": [ "/ill/310/0515-01" ] }, { "cite": "37 NE2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "311 Ill App 605", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3381670 ], "opinion_index": 0, "case_paths": [ "/ill-app/311/0605-01" ] }, { "cite": "48 NE2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "318 Ill App 553", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3401076 ], "opinion_index": 0, "case_paths": [ "/ill-app/318/0553-01" ] }, { "cite": "67 NE2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "329 Ill App 257", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5653319 ], "opinion_index": 0, "case_paths": [ "/ill-app/329/0257-01" ] }, { "cite": "69 NE2d 360", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "329 Ill App 460", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5654667 ], "opinion_index": 0, "case_paths": [ "/ill-app/329/0460-01" ] } ], "analysis": { "cardinality": 387, "char_count": 5335, "ocr_confidence": 0.539, "pagerank": { "raw": 1.6607226010080674e-07, "percentile": 0.6942221341862016 }, "sha256": "44956206acdf5bb0b1442b5efa2944ed2a6bfa13523a75a254a75ff7989c3ca0", "simhash": "1:38a7228449f77250", "word_count": 897 }, "last_updated": "2023-07-14T20:18:17.819141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DEMPSEY, P. J. and SULLIVAN, J., concur." ], "parties": [ "Anna M. Coss, as Administratrix of the Estate of Jose Coss, Deceased, Plaintiff-Appellee, v. Stanley Magdziasz, et al., Defendants. On Appeal of Walter H. Colewell, Appellant." ], "opinions": [ { "text": "MR. JUSTICE SCHWARTZ\ndelivered the opinion of the court.\nIn a dramshop case the jury returned a verdict for $20,000 and the court entered judgment thereon. Appeal was taken by the defendant Walter H. Colewell. Plaintiff is the widow of one Jose Coss, who was killed by Ernest Correa in a tavern fight while Correa was allegedly intoxicated.\nThe complaint charged that Colewell was the owner of the building, and the answer filed by Colewell specifically admitted that he owned the building. Suit was instituted on April 8, 1960, and was brought to trial on March 31, 1964. In his opening statement Colewell\u2019s counsel said for the first time, and contrary to his specific pleading, that his client Colewell was not then \u201cnor has he ever been, the owner wherein the building at 1200 something Chicago Avenue is located.\u201d A discussion then followed in which the court said:\n\u201cWell, the pleadings are an admission but whether the admission will be overcome by evidence, I don\u2019t know. We\u2019ll get to that point when we get to it.\u201d\nA further discussion followed, and counsel for Colewell again said that Colewell was not then, at the time of the occurrence or at any time the owner of the property; \u201cthat he had assisted the owner, a Mr. Gurecki, who had been the owner of this property for about ten years, that he had assisted him in the operation of the building located in a rough neighborhood, 1200 Chicago Avenue.\nIt should be noted that the statute of limitations applicable to dramshop cases had expired. Plaintiff, in an excess of caution when the trial court indicated that defendant might have the right to amend his answer and retract his admission of ownership, examined defendant under Section 60 of the Civil Practice Act, 111 Rev Stats 1963, c 110, \u00a7 60 and in that examination, defendant denied ownership. No steps, however, were taken to amend the answer.\nThe law is clear that an admission in an answer is binding on the party making it and as to such party, it is conclusive as to the admitted fact. Holsinger, Theis & Co. v. Holsinger, 329 Ill App 460, 69 NE2d 360. Indeed, upon the filing of the answer, ownership ceased to be an issue in the case. It is now contended, however, that the admission was waived by the plaintiff\u2019s calling the admitting party as a witness under Section 60. The cases cited by the defendant do not support this contention. Pallasch v. United States Fidelity & Guaranty Co., 329 Ill App 257, 67 NE2d 883, and Ancateau v. Commercial Cas. Ins. Co. of Chicago, 318 Ill App 553, 48 NE2d 440, are garnishment cases in which the plaintiffs\u2019 failure to traverse new matters in the garnishees\u2019 answers would ordinarily have established the truth of these new assertions. The garnishees, however, introduced evidence on those issues and the court held that the defendants waived the effect of the plaintiffs\u2019 failure to reply where the parties treated the issues as properly made. Meyer v. Hendrix, 311 Ill App 605, 37 NE2d 445, also holds that the defendant\u2019s introduction of evidence following the plaintiff\u2019s failure to traverse an affirmative defense made the defense an issue. None of these decisions is authority for the proposition that an admission in the pleadings is waived by calling the admitting party under Section 60.\nThe defendant cannot negate the evidentiary effect of the admission of ownership in the answer, even if the original answer is not held to be conclusive against him. Cases cited by the defendant hold that the uncontradicted testimony of an adverse witness or one called under Section 60, supra, will be taken as true if there is \u201cno countervailing testimony.\u201d Chance v. Kinsella, 310 Ill 515, 142 NE 194; In re Estate of Donovan, 409 Ill 195, 98 NE2d 757. In the instant case there is evidence rebutting Colewell\u2019s denial of ownership. The pleading is in itself evidence. O\u2019Brien v. Brown, 403 Ill 183, 85 NE2d 685, cert den 338 US 827; ILP Evidence \u00a7 136; In re Estate of Clark, 264 Ill App 544. There is also the testimony of the tavern keeper, Reuben Torres, who said Colewell was the owner. Section 60, supra, itself provides:\n\u201cThe party calling for the examination is not concluded [by the adverse party\u2019s testimony] but may rebut the testimony thus given by counter-testimony and may impeach the witness by proof of prior inconsistent statements.\u201d\nThere was adequate evidence to support the finding of ownership.\nDefendant contends that the evidence is insufficient to show that the defendant Correa was intoxicated when he killed Coss or that Correa\u2019s intoxication contributed to the assault. There was testimony by the defendant Torres and other witnesses, including Police Officer Devitt, that Correa was in a hopelessly intoxicated state after the murder. There was substantial evidence from which the jury could find that Correa was intoxicated and that this intoxication was the cause of the fatal struggle. The verdict is not against the manifest weight of the evidence.\nJudgment affirmed.\nDEMPSEY, P. J. and SULLIVAN, J., concur.", "type": "majority", "author": "MR. JUSTICE SCHWARTZ" } ], "attorneys": [ "Mack Berg, of Chicago, for appellant.", "James A. Thompson, of Chicago, for appellee." ], "corrections": "", "head_matter": "Anna M. Coss, as Administratrix of the Estate of Jose Coss, Deceased, Plaintiff-Appellee, v. Stanley Magdziasz, et al., Defendants. On Appeal of Walter H. Colewell, Appellant.\nGen. No. 49,619.\nFirst District, Third Division.\nNovember 4, 1965.\nMack Berg, of Chicago, for appellant.\nJames A. Thompson, of Chicago, for appellee." }, "file_name": "0040-01", "first_page_order": 52, "last_page_order": 56 }