{
  "id": 2701542,
  "name": "Roy M. Jones, a Minor, by Virdine Wesley, his mother and next friend, Plaintiff-Appellee, v. Irene B. DeWig el al., Defendants-Appellants-(Walter Popek, Defendant.)",
  "name_abbreviation": "Jones v. DeWig",
  "decision_date": "1974-12-27",
  "docket_number": "No. 59604",
  "first_page": "423",
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  "last_updated": "2023-07-14T15:50:56.200740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Roy M. Jones, a Minor, by Virdine Wesley, his mother and next friend, Plaintiff-Appellee, v. Irene B. DeWig el al., Defendants-Appellants\u2014(Walter Popek, Defendant.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff filed a two-count complaint in this case. Count I alleged that he received personal injuries when he was shot by Walter Popek, and Count II alleged facts showing that appellants were liable pursuant to the Dram Shop Act (Ill. Rev. Stat. 1963, ch. 43, par. 135). At the close of all the evidence, the court directed verdicts in plaintiffs favor on the issues of liability and submitted the questions of damages to the jury. Verdicts were then returned against Popek on Count I and against appellants on Count II, and judgments were entered accordingly. Only defendants Irene and Donald DeWig and Francis Wondriska appeal from the judgment entered against them.\nAppellants contend that the trial court erred in (1) admitting into evidence Walter Popek\u2019s hearsay statement or at least in admitting it against them; (2) permitting hearsay hospital records and doctor\u2019s reports to be read to the jury; (3) permitting prejudicial reference to be made to insurance; (4) limiting the scope of cross-examination; and (5) entering judgment in excess of the statutory maximum.\nPlaintiff cross-appeals from denial of his motion for costs and attorney\u2019s fees pursuant to section 41 of the Civil Practice Act. Ill. Rev. Stat. 1971, ch. 110, par. 41.\nThe following pertinent evidence was adduced at trial:\nJose Vasquez\nHe is Walter Popek\u2019s attorney, but was unable to locate him for the instant proceedings. He was present when his client, prior to a hearing on criminal charges arising out of the same facts as the instant case and knowing that intoxication was a matter to be used in mitigation of those criminal charges, made a statement under oath admitting his intoxication and naming the tavern at which he had been drinking.\nAngela Hensler\nShe is the court reporter who took Popek\u2019s statement. Over the objection of appellants she was permitted to read that statement.\nPopek stated that he went to Don and Irene\u2019s Tap at about 9 P.M. on October 18, 1963. While he was there he drank 6 or 8 small beers. He purchased a half-pint of whiskey before leaving at about 9:45 P.M. He went home and drank part of the half-pint. He was intoxicated. Later, he drove to Cermak and Central Park where he saw some boys who had previously thrown rocks at him. He parked his car and got out, taking his shotgun with him. Although he could not figure out why, everyone started to run. He stated:\n\u201cI figured if I catch one I got one in the car, I got the gun, got out and I told him to stop and one guy on the end was standing against the building and I started across the street toward him and I got to the curb and I pointed the gun at him and I told him i\u00a3 he was going to run, to run now, and he was standing there and he said something to me and I asked him are you one of the guys and he said no, I\u2019m not and I said where are they at and he said around the corner and he started up the curb and the gun went off once and I started walking around the car and he said if you know what\u2019s good for you you\u2019ll put it away and I started walking back and I was talking to him and that\u2019s all I remember.\u201d\nRoy M. Jones on his own behalf\nOn the evening of October 18, 1963, as he approached the intersection of Cermak and Central Park near Farragut High School, he saw Popek park his automobile and get out. He heard him yelling obscenities at some boys. Popek was carrying a shotgun and appeared to be intoxicated. He put the shotgun to one boy\u2019s head and said something which Jones could not hear. Jones and the other boys in the area started to run. He heard a shotgun blast and fell to the ground feeling intense pain in his back.\nOpinion\nI.\nAppellants first contend that the trial court erred in admitting into evidence Walter Popek\u2019s hearsay statement or at least in admitting it against them. While Popek\u2019s statement is hearsay, it is admissible against Popek because it falls within the admissions exception to the hearsay rule. A statement of a party to an action which tends to establish or disprove any material fact is admissible against him. Felker v. Bartelme, 124 Ill.App.2d 43, 260 N.E.2d 74; Korleski v. Needham, 77 Ill.App.2d 328, 222 N.E.2d 334.\nHowever, because the statement is admissible against Popek does not necessarily mean that it is also admissible against the appellants. At trial, plaintiff offered this statement, which was the only evidence linking Popek to the appellants, as a declaration against interest. In Illinois, a declaration against interest is an exception to the hearsay rule. Four requirements must be satisfied for a statement to qualify for this exception: (1) the declarant must be unavailable; (2) the declaration must be against the declarant\u2019s pecuniary interest; (3) the declarant must have competent knowledge of the facts declared; and (4) the declarant must have no probable motive to falsify the facts declared. (German Insurance Co. v. Bartlett, 188 Ill. 165, 58 N.E. 1075.) In Naylor v. Gronkowski, 9 Ill.App.3d 302, 292 N.E.2d 227, the court determined that a statement made during prior criminal proceedings by the perpetrator of the crime which was the basis of the civil suit was inadmissible as a declaration against interest. In a specially concurring opinion in Naylor, Mr. Justice Stamos stated at page 309:\n\u2018In addition, Spagnola\u2019s prior testimony may have been a deliberate fabrication for purposes of establishing the defense of intoxication in his criminal trial for the offense of murder. I express no opinion as to whether such was his intent, but merely observe that there existed a probable motive to falsify the facts declared.\u201d\nIn the instant case, we do not believe the fourth requirement of the declaration against interest exception to the hearsay rule was satisfied. Here declarant had a probable motive to falsify the facts declared. Popek\u2019s statement, like Spagnola\u2019s statement in Naylor, was made under the pressure of pending criminal proceedings. Both statements were made with a view toward establishing intoxication as a defense or as mitigation in those criminal proceedings. In these circumstances, Popek had a probable motive to falsify his statement. Therefore, the statement does not qualify as a declaration against interest and the trial court erred in admitting the statement against appellants. Since no other evidence was presented at trial linking Popek to the appellants, plaintiff did not establish their liability, and the judgment against Irene and Donald DeWig and Francis Wondriska must be reversed. In the light of this holding, we need not consider appellants\u2019 other contentions.\nII.\nPlaintiff, on his cross-appeal, contends that the trial court erred in denying his motion for costs and attorney\u2019s fees under section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 41.) He argues that defendants did not deny his allegations in good faith. Having examined the record, we do not concur in plaintiffs view.\nThe judgment of the circuit court is reversed; and the denial of plaintiff\u2019s motion for attorney\u2019s fees and costs is affirmed.\nAffirmed in part; reversed in part.\nSULLIVAN, P. J., and DRUCKER, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Mathew K. Szygowski, of Chicago (Bianco & Szygowski, of counsel), for appellants.",
      "David Alswang, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Roy M. Jones, a Minor, by Virdine Wesley, his mother and next friend, Plaintiff-Appellee, v. Irene B. DeWig el al., Defendants-Appellants\u2014(Walter Popek, Defendant.)\n(No. 59604;\nFirst District (5th Division)\nDecember 27, 1974.\nMathew K. Szygowski, of Chicago (Bianco & Szygowski, of counsel), for appellants.\nDavid Alswang, of Chicago, for appellee."
  },
  "file_name": "0423-01",
  "first_page_order": 447,
  "last_page_order": 450
}