{ "id": 5254734, "name": "MAXINE MOHR et al., Plaintiffs-Appellants, v. DOROTHY JILG et al., Defendants-Appellees", "name_abbreviation": "Mohr v. Jilg", "decision_date": "1992-01-31", "docket_number": "No. 4-90-0775", "first_page": "217", "last_page": "225", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 217" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "430 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1127" }, { "page": "1128" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082489 ], "weight": 2, "pin_cites": [ { "page": "85" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0081-01" ] }, { "cite": "360 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. 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DOROTHY JILG et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nPlaintiffs Maxine Mohr and her grandson, Robert D. Waters, brought this action under the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135) against Alberta Scott and Leroy Scott, the owners and operators of the Oasis Tavern and Restaurant (Oasis). Plaintiffs also brought counts based on negligence against the allegedly intoxicated driver, Dorothy Jilg. The jury returned verdicts against Jilg on the negligence counts, but found Oasis not liable under the Dramshop Act. Plaintiffs appeal the judgment in favor of Oasis. We reverse the judgment for Oasis, and remand for trial on the issue of damages only.\nOn February 9, 1988, at approximately 6:20 p.m., Maxine Mohr was driving southbound on Route 267 in Greene County. As she neared the Oasis, a car later identified as being driven by Dorothy Jilg pulled out of Oasis\u2019 parking lot and hit Mohr\u2019s car, knocking it into the ditch. Mohr and her grandson sustained severe injuries. Jilg left the scene of the accident. However, her front license plate was knocked off by the collision and police used it to trace Jilg as the driver of the car.\nJilg did not testify at trial due to illness, but her previous deposition testimony was read. In her deposition, Jilg testified she arrived at the Oasis at 4 or 4:30 p.m., but later admitted she could have arrived as early as 3 p.m. She testified she did not drink any alcoholic beverages before arriving at the Oasis. Jilg stated she had two beers at the Oasis: the first immediately upon arrival, then the second a half hour later. Jilg testified she had her last beer 10 or 15 minutes before the accident. When asked whether she was under the influence of alcohol at 6:25 p.m., the time of the accident, she answered \u201cWell, I just drank them two cans. I guess I was.\u201d\nJilg stated that she did not see Mohr\u2019s car collide with hers, and was unaware even that a collision occurred. Jilg\u2019s son, David, testified he was at his mother\u2019s house on the night of February 9, 1988, and that his mother arrived between 6:30 and 7 p.m. David Jilg testified his mother slurred her words and that he smelled alcohol on her breath, but he did not believe she was intoxicated. He testified his mother did not drink any alcohol during their dinner.\nLeroy Scott managed the Oasis and tended bar on February 9, 1988, from 1 to 4:45 p.m. He testified Jilg arrived around 3:30 p.m. He served Jilg a 12-ounce can of Stag beer upon arrival, and then a second one around 45 minutes later. Scott testified that based on his observation of Jilg, he did not believe she was intoxicated. Scott was relieved by Harold Mullinck, who tended bar from 5 to 5:15 p.m. He testified he did not serve Jilg anything to drink, but stated Jilg had a glass of beer in front of her. Cletus Beirman, another Oasis bartender, relieved Mullinck at 5:15 p.m. Beirman served Jilg one Stag beer between 5:15 and 6:15 p.m. He stated he was not close enough to notice if alcohol was on her breath, and did not remember seeing her walk. When asked if he was able to form an opinion whether Jilg was intoxicated, Beirman stated, \u201cWell she seemed fine to me when I came to work,\u201d and testified that she was \u201cfine\u201d the last time he remembered seeing her.\nMatthew Scroggins, a Carrollton patrolman, was called to the scene of the accident. He ran a registration check of the license plate found at the scene which revealed it to be Jilg\u2019s, and sent a deputy to locate her. Scroggins later saw Jilg at the sheriff\u2019s department at 7:50 p.m. Scroggins testified that at this time she was swaying, appeared unsteady on her feet, slurred her speech, and he smelled alcohol on her breath. Scroggins observed Jilg perform a finger-to-nose field-sobriety test, in which she touched the tip of her nose once in six attempts. Based on his observations of Jilg, Scrog-gins believed she was intoxicated, and arrested her for driving under the influence. Scroggins performed a breathalyzer test at 8:25 p.m., which revealed her blood-alcohol level to be 0.12. Scroggins asked Jilg how much she drank, and she said \u201cthree or four.\u201d This statement was admitted only as against Jilg, and not against Oasis.\nGeorge Rogers, an Illinois State trooper, testified he saw Jilg at the Greene County sheriff\u2019s department between 7:30 and 8 p.m. on February 9, 1988. According to Rogers, Jilg slurred her speech, her eyes were bloodshot, and he smelled alcohol on her breath. Rogers performed a horizontal gaze nystagmus test on Jilg. He believed Jilg was intoxicated and did not have the ability to operate a motor vehicle.\nRich Snyder was the Greene County deputy sheriff sent to the Jilg house on February 9, 1988. He found Jilg\u2019s car in a shed, with one license plate missing and the rear plate matching the one found at the scene of the accident. He smelled alcohol on Jilg\u2019s breath at 7:17 p.m. when he spoke with her. Jilg\u2019s guilty plea and traffic citation for driving under the influence of alcohol on February 9, 1988, were admitted into evidence only against Jilg.\nUpon this evidence, the jury returned verdicts against Jilg. The jury answered \u201cyes\u201d to a special interrogatory which asked, \u201cWas Dorothy Jilg intoxicated at the time of the accident?\u201d The jury, however, found in favor of defendant Oasis on the claim based on dramshop liability. Plaintiffs filed a post-trial motion regarding the count against Oasis. Plaintiffs asked the court to enter judgment n.o.v. or, in the alternative, to grant plaintiffs a new trial on the count against Oasis because they argued the special interrogatory was inconsistent with the general verdict. The trial court denied plaintiffs\u2019 motion and their appeal followed.\nPlaintiffs contend the jury\u2019s special interrogatory was inconsistent with its general verdict in favor of defendant Oasis, finding it not liable under the Dramshop Act. The Dramshop Act provides a cause of action for those injured by intoxicated drivers against \u201cany person, licensed under the laws of this State *** to sell alcoholic liquor, who, by selling or giving alcoholic liquor *** causes the intoxication of such person.\u201d (Ill. Rev. Stat. 1987, ch. 43, par. 135.) The legislative intent of the Dramshop Act is to place the responsibility for damages occasioned by the use of alcohol on those who profit from its sale. Kingston v. Turner (1987), 115 Ill. 2d 445, 457, 505 N.E.2d 320, 325.\nThe jury\u2019s answer to the special interrogatory finding that Jilg was intoxicated at the time of the accident should not be disturbed upon appeal absent a finding that it is against the manifest weight of the evidence. (Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 249, 476 N.E.2d 427, 438.) The circumstances surrounding the accident, Jilg\u2019s testimony that she \u201cguessed\u201d she was intoxicated, her son\u2019s testimony that she slurred her words when she arrived home that night, and the various police officers\u2019 testimony that Jilg was intoxicated abundantly support the jury\u2019s special interrogatory that she was intoxicated at the time of the accident. The function of the special interrogatory is to \u201ctest the jury\u2019s general verdict against its conclusions as to the ultimate controlling facts.\u201d (Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 835, 507 N.E.2d 930, 939.) When the answer to the special interrogatory is inconsistent with the jury\u2019s general verdict, the special interrogatory controls. Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1108.\nIn order for Oasis to be liable under the Dramshop Act to a plaintiff, the jury had to find the following propositions: (1) Jilg was intoxicated at the time of the accident, (2) Oasis provided intoxicating liquor consumed by Jilg, (3) the liquor provided by Oasis caused the intoxication of Jilg, (4) Jilg\u2019s intoxication was at least one cause of the accident, and (5) as a result of the occurrence, each plaintiff suffered injury and/or damage to his or her property. By its answer to the special interrogatory, the jury found Jilg was intoxicated at the time of the accident. Oasis admitted serving intoxicating liquor to Jilg.\nThe remaining factors which plaintiffs were required to prove in order to recover on the dramshop counts were not controlled by the answer to the interrogatory or the verdict against Jilg. The question whether the plaintiffs each suffered injury or damage as a result of the occurrence was not necessarily determined by the verdict against Jilg as that verdict is entitled to no more weight than the verdict on the dramshop counts which could, in the abstract, have resulted from a jury determination that no injury or damage had occurred to any plaintiff as a result of the collision. However, the evidence was overwhelming that at least some injury or damage did so occur to each plaintiff. Any finding to the contrary could never stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Similarly, under Pedrick, the overwhelming proof required the jury to find that Jilg\u2019s intoxication (1) was caused by Oasis, and (2) was one proximate cause of the collision.\nTo cause the intoxication of an individual, the dramshop must furnish more than a negligible amount of alcohol to the person. (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111.) The alcohol furnished at two separate taverns may cause a single intoxication, subject to the limitation that a tavern may not be held liable for a de minimis contribution to an individual\u2019s intoxication. Kingston, 115 Ill. 2d at 456-57, 505 N.E.2d at 325.\nLogically, for Oasis not to have caused Jilg\u2019s intoxication, she must have become intoxicated prior to arriving at the Oasis \u2014 and remained intoxicated for a period of approximately three hours as a result of her prior drinking \u2014 and the two to three beers she consumed at the Oasis must have contributed only a negligible amount to her intoxication. For Oasis not to be liable, it is necessary that Jilg became intoxicated prior to arriving at the Oasis since she had no opportunity to consume additional alcohol after leaving the Oasis, as the accident occurred immediately after Jilg exited Oasis\u2019 parking lot. However, no evidence was presented at trial to support the conclusion that Jilg was intoxicated when she arrived at the Oasis, and that she was so intoxicated that the two to three beers contributed only a de minimis amount to her intoxication. There was no direct evidence that she drank alcohol anywhere except at the Oasis prior to the accident.\nThe trial court relied on Kingston in determining that there was no inconsistency between the jury\u2019s special interrogatory and its general verdict. In Kingston, the supreme court held it possible for the jury to find that an individual was intoxicated at the time of the accident, but that his intoxication was not caused by either of the two bars where he drank, when no clear evidence was presented proving that he drank more than negligible amounts of beer at either bar. However, Kingston is distinguishable because in that case there was direct evidence that the intoxicated motorcyclist consumed alcohol at two different bars, but no clear evidence he had more than negligible amounts of alcohol at either, and the jury was forced to decide whether one or both caused the intoxication. Here, by contrast, Oasis admitted serving Jilg more than a negligible amount of alcohol, and there was no evidence presented that Jilg consumed any alcohol prior to arriving at the Oasis.\nIn its denial of plaintiffs\u2019 post-trial motion, the court in the instant case stated:\n\u201c[The jury] did not have to believe Jilg\u2019s statement that she did not consume any alcohol before entering the Oasis. *** They could have not believed Jilg when she said she did not drink any alcohol before entering the Oasis.\u201d (Emphasis added.)\nWhile the credibility of witnesses and weight given to their testimony are typically for the jury\u2019s consideration, a jury may not arbitrarily reject a witness\u2019 testimony. The Illinois Supreme Court has stated, \u201cWhere the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.\u201d (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127.) Brown involved a paternity case in which defendant admitted to having sexual intercourse with the plaintiff over a period of months, and despite a complete absence of evidence that plaintiff had intercourse with anyone else, the jury returned a verdict for defendant. The jury apparently rejected the testimony of plaintiff that she had not had intercourse with anyone except defendant. The court held that while the jury is usually free to disbelieve a particular witness, \u201c \u2018it may not make an affirmative finding that the exact opposite of [a witness\u2019] testimony is true if there is no evidence to support such a finding.\u2019 \u201d Brown, 88 Ill. 2d at 86, 430 N.E.2d at 1128, quoting 30 Am. Jur. 2d Evidence \u00a71080, at 227 (1976).\nIn the instant case, the jury must have believed the exact opposite of Jilg\u2019s testimony that she did not drink anywhere but the Oasis the day of the accident, despite the absence of any evidence indicating that she did. Jilg\u2019s testimony that she did not drink prior to arriving at the Oasis was uncontradicted. It was, in fact, supported by Cletus Beirman\u2019s testimony that Jilg did not appear intoxicated at 5:15 p.m. Similarly, it was not inherently improbable that Jilg did not consume any alcoholic beverages prior to arriving at the Oasis at 3:30 p.m., drank two to three beers, and was intoxicated at the time of the accident, 6:25 p.m. Jilg\u2019s blood-alcohol level of 0.12 does not contradict her testimony that she did not consume any alcohol prior to arriving at the Oasis.\nThe strength and uncontradicted nature of the evidence also required a determination that Jilg\u2019s intoxication was a proximate cause of the collision. It occurred almost immediately after she left the Oasis, where she had been drinking. Jilg drove out of the Oasis parking lot and collided with the automobile in which the plaintiffs were riding. No evidence indicated any other explanation of the collision other than that plaintiff was inattentive. Given the fact that Jilg was intoxicated at this time, any explanation of the occurrence which does not include Jilg\u2019s impairment from intoxication as a proximate cause of the collision defies reason. The causal relationship between the intoxication and the collision was proved as a matter of law.\nAccordingly, under Pedrick, we find that the evidence when viewed most favorably to Oasis so overwhelmingly favors plaintiffs as to the Dramshop Act count that no contrary verdict could ever stand. We reverse the judgment on the verdict in favor of Oasis and grant judgment n.o.v. in favor of plaintiffs and against Oasis as to liability on the Dramshop Act count and remand for retrial as to that count on the question of damages only.\nReversed and remanded.\nLUND, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE GREEN" }, { "text": "JUSTICE McCULLOUGH,\ndissenting:\nI do not agree that Jilg\u2019s intoxication was necessarily a proximate cause of the accident. The findings by the jury that Jilg was intoxicated and the Oasis not liable in damages are not necessarily inconsistent.\nIntoxication alone is not proximate cause. I strenuously disagree with the majority statement:\n\u201cNo evidence indicated any other explanation of the collision other than that plaintiff was inattentive. Given the fact that Jilg was intoxicated at this time, any explanation of the occurrence which does not include Jilg\u2019s impairment from intoxication as a proximate cause of the collision defies reason. The causal relationship between the intoxication and the collision was proved as a matter of law.\u201d 223 Ill. App. 3d at 223.\nThe violation of a State law relating to drinking, in itself, is not proof that the violation was the cause of the accident. Finding Jilg liable for damages on the negligence issue is not determinative of the Oasis\u2019 liability.\nThe jury was instructed as to negligence:\n\u201cThe plaintiffs claim that they were injured and sustained damage, and that the defendant was negligent in one or more of the following respects:\na. Failing to yield the right-of-way upon entering Illinois Route 267; and\nb. Driving while under the influence of intoxicating liquor.\u201d\nThe jury was further informed that the plaintiff had to prove:\n\u201cFirst, *** Dorothy Jilg, acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and *** was negligent.\u201d\nThe jury returned a general verdict of negligence and was not asked to specify whether the plaintiff proved either or both of the alternative grounds for that finding. The special interrogatory only asked the jury whether defendant was under the influence.\nThe jury could have concluded that while Jilg was intoxicated (and that the tavern sold her the liquor and caused the intoxication), the proximate cause of the accident was Jilg\u2019s failure to yield the right-of-way irrespective of the intoxication.\nBecause the jury did not explicitly find that Jilg\u2019s intoxication was at least one cause of the accident or was a necessary or mandatory inference required by the evidence, the jury could have determined the injury was not caused \u201cby the intoxication\u201d of Jilg based upon the instructions given as applied to the evidence presented.", "type": "dissent", "author": "JUSTICE McCULLOUGH," } ], "attorneys": [ "Michael J. McDonald and Howard Lee White, both of Jerseyville, for appellants.", "Thomas Bordenkircher, of Springfield, for appellees." ], "corrections": "", "head_matter": "MAXINE MOHR et al., Plaintiffs-Appellants, v. DOROTHY JILG et al., Defendants-Appellees.\nFourth District\nNo. 4 \u2014 90\u20140775\nOpinion filed January 31, 1992.\nMcCULLOUGH, J., dissenting.\nMichael J. McDonald and Howard Lee White, both of Jerseyville, for appellants.\nThomas Bordenkircher, of Springfield, for appellees." }, "file_name": "0217-01", "first_page_order": 241, "last_page_order": 249 }