{ "id": 5308238, "name": "Bernadine Lein, Adm'x of the Estate of Wilbert Lein, Deceased, Plaintiff-Appellee, v. Marie Pietruszewski, d/b/a Fullerton Drake Lounge, et al., Defendants-Appellants", "name_abbreviation": "Lein v. Pietruszewski", "decision_date": "1974-12-05", "docket_number": "No. 60130", "first_page": "784", "last_page": "790", "citations": [ { "type": "official", "cite": "24 Ill. App. 3d 784" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "278 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2835384 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0506-01" ] }, { "cite": "230 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "38 Ill.2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "185 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "37 Ill.App.2d 105", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5257074 ], "year": 1967, "pin_cites": [ { "page": "109-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/37/0105-01" ] }, { "cite": "169 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "19 Ill.2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743913 ], "year": 1962, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0593-01" ] }, { "cite": "299 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "424" } ], "opinion_index": 0 }, { "cite": "12 Ill.App.3d 1030", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2855783 ], "year": 1960, "pin_cites": [ { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/1030-01" ] } ], "analysis": { "cardinality": 595, "char_count": 12454, "ocr_confidence": 0.746, "pagerank": { "raw": 1.2112212012917922e-07, "percentile": 0.5960202699076278 }, "sha256": "4fcb0cd5c1e6290e3f4e4b79e908d99bbff164aec06a8cc04ad784efa163be56", "simhash": "1:f260fe3a3b4ecff2", "word_count": 2087 }, "last_updated": "2023-07-14T15:53:16.970085+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bernadine Lein, Adm\u2019x of the Estate of Wilbert Lein, Deceased, Plaintiff-Appellee, v. Marie Pietruszewski, d/b/a Fullerton Drake Lounge, et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nThis appeal is from a judgment in the trial court entered against defendants, Marie Pietruszewski, Robert Culum, and Julia Culum, under the Dram Shop Act. (III. Rev. Stat. 1969, ch. 43, par. 135.) In her complaint, Bemadine Lein, as administratrix of the estate of Wilbert Lein, deceased, alleged that Robert and Julia Culum were the owners or trustees of the Fullerton Drake Lounge located at 3545 W. Fullerton Avenue in Chicago and that Marie Pietruszewski was the operator of said lounge; that they respectively sold and permitted to be sold alcoholic beverages to Daniel D\u2019Amico and Edward Kuffel to the point that they became intoxicated; and that as a result of such intoxication they stabbed plaintiff\u2019s decedent and caused his death. The jury returned a verdict against defendants and defendants now appeal.\nWe affirm.\nOn appeal defendants present three issues for review: (1) whether the plaintiff, suing as an administratrix, was the proper party in the action under the Dram Shop Act to recover for injuries to the means of support of herself and her two minor children; (2) whether the trial court ruled correctly when it sustained an objection to the competency of Mr. D\u2019Amico as a witness and precluded him from testifying at all; and (3) whether the verdicts of the jury are so irrational that they may not be permitted to stand.\nOn September 27, 1969, Wilbert Lein and Chester Horton arrived at the Fullerton Drake Lounge in Chicago in the early evening. At about 11 P.M. that evening discord developed in the lounge and Horton and Lein began to argue with two other patrons in the lounge, Dan D\u2019Amico and Edward Kuffel. All four of them left the tavern and a fight started. Horton chased D\u2019Amico to his car to continue the fight after D\u2019Amico had retreated to his automobile. D\u2019Amico came out of his car carrying a knife and in the ensuing affray he stabbed Plorton four times and stabbed Lein, who died from the wound.\nAs a result of this incident a three-count complaint was filed in the circuit court of Cook County. In Count I, decedent\u2019s administratrix, Bemadine Lein, brought action under the Dram Shop Act (Ill. Rev. Stat. 1969, ch. 43, par. 135) against defendants Marie Pietruszewski, the tavern operator, and Robert and Julia Culum, the owners of the premises. In Count II, decedent\u2019s administratrix brought a wrongful-death action under the Injuries Act (Ill. Rev. Stat. 1969, ch. 70) against Dan D\u2019Amico and Edward Kuffel. In Count III, Chester Horton brought a common-law negligence action against D\u2019Amico and Kuffel. The jury returned a verdict of $135,000 against the three defendants in Count I and this amount was reduced by the trial court to $20,000, the maximum recoverable under the Dram Shop Act. The jury returned a verdict of $15,000 against D\u2019Amico in Count II. Kuffel, the other defendant in Count II, was never served. As to Count III, Horton\u2019s common-law negligence action against D\u2019Amico and Kuffel, there were no instructions given to the jury and no verdict was ever returned. Although the record contains no formal dismissal of Count III, nowhere in the record of proceedings at trial is Count III ever considered.\nThis appeal concerns only the Count I defendants. D\u2019Amico, a defendant in Count II, has not appealed the $15,000 verdict against him.\nDram Shop defendants\u2019 first contention is that the administratrix was not a proper party plaintiff to bring the action under the Dram Shop Act. (Ill. Rev. Stat. 1969, ch. 43, par. 135.) Plaintiff responds that this objection was not raised by answer, motion, or post-trial motion and was therefore waived. Defendants reply that in their answer to the first amended complaint, they denied that the plaintiff, Bernadine Lein, as administratrix, had a right to sue. Defendants, in answer to paragraph no. 8 of Count I of plaintiff\u2019s amended complaint state the following: \u201cThey deny the aHegations of paragraph 8, except that they admit there is in force and effect a statute commonly known as the Dram Shop Act.\u201d Paragraph 8 of Count I of plaintiff\u2019s amended complaint reads as foHows:\n\u201cThat by virtue of the provisions of Chapter 43, Section 135 of the Illinois Revised Statutes, plaintiff is entitled to recover her damages of and from the defendants, Marie Pietruszewski, Robert Culum and Julia Culum.\u201d\nWe do not believe that such a general denial that plaintiff was entitled to relief is sufficient to preserve on review the issue of whether or not administratrix was a proper party to sue under the Dram Shop Act. This issue was never argued in the trial court and was not raised by motion or post-trial motion. It is a well estabfished rule that an appellate court does not have authority to consider a matter not passed upon by the trial court. (Trisko v. Vignola Furniture Co. (1973), 12 Ill.App.3d 1030, 1034, 299 N.E.2d 421, 424; Ray v. City of Chicago (1960), 19 Ill.2d 593, 602, 169 N.E.2d 73, 78; Consoer, Townsend & Associates v. Addis (1962), 37 Ill.App.2d 105, 109-10, 185 N.E.2d 97, 99.) Furthermore, \u201can appellate court should not, and will not, consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at the trial.\u2019\u201d Hux v. Raben (1967), 38 Ill.2d 223, 225, 230 N.E.2d 831, 832.\nFurthermore, the objection that the plaintiff, as representative of deceased, was an improper party plaintiff, is an objection to the pleadings which should have been raised by motion. (Ill. Rev. Stat. 1973, ch. 110, par. 45(1).) Section 45(1) further requires that \u201c[t]he motion shaU point out specifically the defects complained of * * Defendants did not file any motion with respect to the pleadings and the objection that plaintiff was an improper party under the statute was not specificaHy set out in the answer. Paragraph 8 of defendants\u2019 answer to Count I of the amended complaint denies only the allegation in the amended complaint that \u201cby virtue of the Dram. Shop Act plaintiff is entitled to recover damages from defendants.\u201d The essential, specific words \u201cimproper party plaintiff,\u201d \u201cnot the real party in interest,\u201d or the like, are never used.\nDefendants\u2019 second contention is that the trial court committed reversible error when it refused under the Dead Man\u2019s Act to allow D\u2019Amico to testify in his own behalf to the events of the stabbing.\nThe Dead Mans Act has been amended effective 1973, but this amendment has no application to the present case. The version of the Dead Man\u2019s Act applicable to this case is section 2 (Ill. Rev. Stat. 1969, ch. 51, par. 2) which reads in pertinent part as follows:\n\u201cNo party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any habitual drunkard, or person who is mentally ill or mentally deficient, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely:\nt$ e #\nThird \u2014 Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.\u201d\nUnder the third exception, if Chester Horton, who testified at trial, was a party suing, then D\u2019Amico\u2019s testimony should have been allowed. If Horton was not a party suing then D\u2019Amico\u2019s testimony was properly disallowed under the Dead Man\u2019s Act.\nIn Count III of the amended complaint, Chester Horton is a plaintiff complaining against defendants D\u2019Amico and Kuffel. Plaintiff, Bernadine Lein, states in her brief that during the course of the discovery deposition of Chester Horton, taken 5 months before the trial, attorneys for both defendants were advised that Mr. Horton was no longer pursuing his case against the defendants. Plaintiff further states in her brief that when the case was assigned to trial the court was advised that Mr. Horton was no longer a party plaintiff and that the court requested defense counsel to prepare an appropriate order.\nDefendants correctly state that there is no record of any conversations concerning Horton\u2019s dismissal as a party plaintiff. Furthermore, no order dismissing Horton from the case was ever prepared. Although it is true that there was never any formal dismissal of Horton from the case, we believe that the case, taken as a whole, indicates that Horton was not a party suing when the case went to trial.\nThroughout the entire proceedings in the trial court, the plaintiff was referred to in the singular. In giving the instructions to the jury the court referred only to Bernadine Lein, the plaintiff in Counts I and II. No instructions were even tendered concerning Count III. Furthermore, the jury entered verdicts for the plaintiff, Bernadine Lein, on Counts I and II, but entered no verdict on Count III. Counsel for defendant D\u2019Amico, who in the amended complaint is being sued by both Bernadine Lein in Count II and Chester Horton in Count III, referred to plaintiff in the singular in his closing argument. When Chester Horton testified at trial, he did not testify to any medical treatment, expenses or disability relating to his injuries. In light of these facts, we believe that Chester Horton appeared at the trial as a witness and not a party in interest and that the trial court ruled correctly in barring D\u2019Amico\u2019s testimony under the Dead Man\u2019s Act.\nDefendants\u2019 third contention is that the verdicts of the jury are so irrational that they may not be permitted to stand. On Count II, the wrongful-death count, the jury returned a verdict of $15,000. On Count I, the Dram Shop count, the jury returned a verdict of $135,000, which was reduced by the trial court to $20,000, the maximum recoverable under the Dram Shop Act. The defendants\u2019 argument is that damages for \"pecuniary injuries\u201d recoverable under the wrongful-death act include damages for loss of \u201cmeans of support\u201d recoverable under the Dram Shop Act. Defendants argue that because the jury returned a verdict of $15,000 (Hi the wrongful-death count, this was the upper limit of recovery for loss of means of support under the Dram Shop count.\nWe have reviewed the cases cited by the defendants and find nothing that dictates that the $15,000 recovery awarded by the jury under the wrongful-death count was the upper limit of recovery under the Dram Shop count. The procedure to be used in assessing damages under the Dram Shop Act is clearly stated in Kurth v. Amee, Inc. (1972), 3 Ill.App.3d 506, 510, 278 N.E.2d 162, 165:\n\u201cWe believe that the proper procedure is to assess the total damages, without reference to any amounts already received, and then reduce the verdict by such amounts. The difference, of course,\nwould be subject to the maximum limits provided in the Act.\u201d Using this procedure, the $135,000 awarded by the jury under the Dram Shop Act should be reduced by $15,000, with the resulting $120,000 subject to the $20,000 maximum recovery under tire Dram Shop Act. This procedure was followed by the trial court.\nFurthermore, the elements of damages for \u201cpecuniary injuries\u201d and the elements of damages for \u201closs of support\u201d as set out in the instructions are not so similar that it could be said that the jury was acting under an erroneous impression of the law when it returned verdicts with such a large monetary spread.\nFor the reasons above stated, we affirm the judgment of the circuit court of Cook County.\nJudgment affirmed.\nMcNAMARA, P. J\u201e and DEMPSEY, J., concur.", "type": "majority", "author": "Mr. JUSTICE McGLOON" } ], "attorneys": [ "Paul H. Heineke, of Heineke & Schrader, of Chicago, for appellants.", "John B. Kincaid, of Mirabella, Facktor, Mirabella & Kincaid, of Wheaton, for appellee." ], "corrections": "", "head_matter": "Bernadine Lein, Adm\u2019x of the Estate of Wilbert Lein, Deceased, Plaintiff-Appellee, v. Marie Pietruszewski, d/b/a Fullerton Drake Lounge, et al., Defendants-Appellants.\n(No. 60130;\nFirst District (3rd Division)\nDecember 5, 1974.\nPaul H. Heineke, of Heineke & Schrader, of Chicago, for appellants.\nJohn B. Kincaid, of Mirabella, Facktor, Mirabella & Kincaid, of Wheaton, for appellee." }, "file_name": "0784-01", "first_page_order": 808, "last_page_order": 814 }