{ "id": 2714087, "name": "CAROL JACKSON, Individually and for the use and benefit of Debra Ann Jackson, a Minor, Plaintiff-Appellant, v. CHARLES NAVIK et al., d/b/a Helvitia Hotel, et al., Defendants.-(WALTER KOESTER, a/k/a Walter Kessler, d/b/a Last Resort Lounge, Defendant-Appellee.)", "name_abbreviation": "Jackson v. Navik", "decision_date": "1976-04-02", "docket_number": "No. 74-375", "first_page": "88", "last_page": "97", "citations": [ { "type": "official", "cite": "37 Ill. App. 3d 88" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "31 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833119 ], "weight": 2, "pin_cites": [ { "page": "397" }, { "page": "396-97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0393-01" ] }, { "cite": "51 Ill. B.J. 810", "category": "journals:journal", "reporter": "Ill. B.J.", "weight": 2, "year": 1963, "pin_cites": [ { "page": "815" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "33 Ill. App. 2d 314", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234256, 5235636 ], "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0314-02", "/ill-app-2d/33/0314-01" ] }, { "cite": "31 Ill. App. 2d 379", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5226920 ], "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0379-01" ] }, { "cite": "19 Ill. App. 2d 212", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5190832 ], "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/19/0212-01" ] }, { "cite": "37 Ill. 2d 139", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863959 ], "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0139-01" ] }, { "cite": "42 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846721 ], "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0559-01" ] }, { "cite": "15 Ill. App. 3d 698", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463443 ], "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0698-01" ] }, { "cite": "95 Ill. App. 2d 38", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2538956 ], "pin_cites": [ { "page": "39-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0038-01" ] }, { "cite": "132 Ill. App. 2d 92", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2535722 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0092-01" ] }, { "cite": "93 Ill. App. 2d 237", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2645053 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/93/0237-01" ] }, { "cite": "57 Ill. App. 2d 293", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2597649 ], "weight": 2, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0293-01" ] }, { "cite": "321 Ill. App. 186", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2423910 ], "opinion_index": 0, "case_paths": [ "/ill-app/321/0186-01" ] }, { "cite": "332 Ill. App. 117", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5042765 ], "opinion_index": 0, "case_paths": [ "/ill-app/332/0117-01" ] }, { "cite": "341 Ill. App. 521", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4986823 ], "opinion_index": 0, "case_paths": [ "/ill-app/341/0521-01" ] }, { "cite": "13 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5346139 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0830-01" ] }, { "cite": "14 Ill. App. 2d 128", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5174657 ], "weight": 2, "pin_cites": [ { "page": "131-32" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0128-01" ] }, { "cite": "11 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2785832 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/11/0077-01" ] }, { "cite": "171 Ill. App. 155", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2773560 ], "opinion_index": 0, "case_paths": [ "/ill-app/171/0155-01" ] }, { "cite": "318 Ill. App. 287", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3399657 ], "opinion_index": 0, "case_paths": [ "/ill-app/318/0287-01" ] }, { "cite": "11 Ill. App. 2d 441", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5161881 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/11/0441-01" ] }, { "cite": "381 Ill. 295", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2558576 ], "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill/381/0295-01" ] }, { "cite": "4 Ill. App. 348", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4773839 ], "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-app/4/0348-01" ] }, { "cite": "26 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2785667 ], "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0670-01" ] }, { "cite": "23 Ill. App. 3d 274", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2508476 ], "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0274-01" ] }, { "cite": "21 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378057 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0097-01" ] }, { "cite": "18 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2613169 ], "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0812-01" ] }, { "cite": "11 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2932860 ], "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0739-01" ] }, { "cite": "55 A.L.R. 3d 272", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1974, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "308 Ill. 189", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5097921 ], "year": 1964, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill/308/0189-01" ] }, { "cite": "5 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527291 ], "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0065-01" ] }, { "cite": "23 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510093 ], "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0190-01" ] }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "11 Ill. App. 3d 469", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2931178 ], "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0469-01" ] }, { "cite": "113 Ill. App. 2d 90", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589939 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0090-01" ] }, { "cite": "106 Ill. App. 2d 383", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598154 ], "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/106/0383-01" ] }, { "cite": "34 Ill. App. 2d 421", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5237036 ], "pin_cites": [ { "page": "440-50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/34/0421-01" ] }, { "cite": "8 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2761946 ], "weight": 2, "pin_cites": [ { "page": "404" }, { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0401-01" ] }, { "cite": "75 Ill. App. 2d 109", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2577968, 2578619 ], "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0109-02", "/ill-app-2d/75/0109-01" ] } ], "analysis": { "cardinality": 1076, "char_count": 22602, "ocr_confidence": 0.885, "pagerank": { "raw": 3.481448551485195e-07, "percentile": 0.8817795940998877 }, "sha256": "be8193b8c0acd85d94d26ec7e4b761945db89bc2e253e4759bd15f5210cba9ce", "simhash": "1:e327971c780e94b5", "word_count": 3976 }, "last_updated": "2023-07-14T17:14:56.744968+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROL JACKSON, Individually and for the use and benefit of Debra Ann Jackson, a Minor, Plaintiff-Appellant, v. CHARLES NAVIK et al., d/b/a Helvitia Hotel, et al., Defendants.\u2014(WALTER KOESTER, a/k/a Walter Kessler, d/b/a Last Resort Lounge, Defendant-Appellee.)" ], "opinions": [ { "text": "Mr. JUSTICE DIXON\ndelivered the opinion of the court:\nThis was an action under the Dram Shop Act for loss of means of support by the wife and minor child of an intoxicant who had imbibed numerous drinks at a series of taverns starting in the morning of the occurrence at defendant\u2019s \u201cLast Resort Lounge,\u201d went boating and suffered a quadriplegia after diving from the boat in shallow water. The action which arose in 1968 was tried on the theory that the drinks imbibed at defendant\u2019s tavern caused the intoxication \u201cin whole or in part\u201d and that the dive from the boat was \u201cin consequence\u201d of that intoxication. In a second count plaintiffs wife alleged that she suffered damage to property and was compelled to expend money for her husband\u2019s medical care and treatment. The action was tried without a jury and at the close of plaintiff s case the circuit court of Lake County granted defendant\u2019s motion for a finding in his favor and dismissed the action.\nPlaintiff contends that the evidence adduced made a prima facie case for plaintiff and the court erred in allowing defendant\u2019s motion and entering judgment for defendant.\nSection 64(3) (formerly 64(5)) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 64(3)) provides for motions for a finding, judgment or decree at the close of plaintiff s case in nonjury cases. It provides that in ruling on the motion the court shall weigh the evidence, and if the ruling on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered. This permits the trial judge, at the close of plaintiffs case, to evaluate the evidence and determine the credibility of witnesses.\nOn appeal, the reviewing court must examine the evidence, and in the light of these holdings, determine whether the trial court, after weighing the evidence, erred in deciding that plaintiffs failed to make a prima facie case. In determining the propriety of the trial court\u2019s ruling on a motion based on section 64(3) the reviewing court should not disturb the findings of the trial court unless such findings are manifestly erroneous. Bilyeu v. Plant, 75 Ill. App. 2d 109, 118-19.\n\u201cBy use of the phrase, \u2018weigh the evidence,\u2019 in this context, the Civil Practice Act requires the trial judge, at the close of the plaintiff s case, to evaluate the evidence by determining the credibility of the witnesses, reasonable inferences to be drawn from their testimony, and, in general, the weight and quality of the testimony, in order to conclude whether or not the evidence to that point of the trial has made out a prima facie case in favor of plaintiff.\u201d De Bello v. Checker Taxi Co., 8 Ill. App. 3d 401, 404.\nUntil 1969, the trial judge was required to view the evidence and all reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff and then decide whether it was sufficient to support the plaintiffs cause. (See Brubaker v. Gould, 34 Ill. App. 2d 421, 440-50.) In 1969 in the case of Miller v. Heller, 106 Ill. App. 2d 383, 393, the court adopted the dissent in Brubaker as the obligation of the trial court in weighing the evidence in a chancery case. In 1969 in a law case the court in Allfree v. Estate of Rosenthal, 113 Ill. App. 2d 90, adopted the Brubaker dissent. By 1973 the court in Chappell v. Juergens, 11 Ill. App. 3d 469, 473, stated, \u201cIt is now well settled that a trial judge may weigh the evidence * * * and he need not view the evidence in the light most favorable to the plaintiff.\u201d\nAppellant in the instant case contends that the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510) is applicable to the issue before us. In Fisher v. City of Aledo, 23 Ill. App. 3d 190,192, it was held that it was not. But see Bochenek v. Bochenek, 5 Ill. App. 3d 65,68, where the Pedrick rule was suggested as an analogous standard.\nOur courts have spoken expressly in terms of such evidence as making \u201ca prima facie case\u201d but they have not defined their meaning. It is at least arguable that the words were not employed in their primary sense. Ballantine\u2019s Law Dictionary defines \u201cprima facie case\u201d as \u201cA case supported by sufficient evidence to warrant submission to the jury or trier of the fact and the rendition of a verdict or finding in accord therewith. A cause of action or defense sufficiently established by a party\u2019s evidence to justify a verdict in his favor, provided the other party does not rebut such evidence.\u201d Also see Morrison v. Flowers, 308 Ill. 189, 195; 32A C.J.S. Evidence, \u00a71016, at 626 (1964) and \u201cPrima Facie Case \u2014 Dismissal,\u201d An-not., 55 A.L.R. 3d 272, 274 (1974). The Federal courts pursuant to their amended Rule 41(b) of the Federal Rules have held or recognized that a trial judge acting pursuant to that Rule, may grant a motion for dismissal of a nonjury suit at the close of the plaintifFs evidence, even where such evidence is sufficient in quantum and quality to make out a prima facie case. Our statute although similar in many respects to Rule 41(b) of the Federal Rules differs significantly in omitting to provide specifically that upon the motion a trial court may determine the facts. Our courts have until recently interpreted our statute as precluding the trial court from dismissing at the close of plaintiff\u2019s evidence where such evidence is sufficient to make out a prima facie case. For example see De Bello, 8 Ill. App. 3d 401, 405, where the court stated, \u201cIn our opinion, the evidence presented by plaintiff did tend to establish all the necessary elements of a prima facie case.\u201d Six months later the same court in a case where the issue was squarely raised (Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg, 11 Ill. App. 3d 739, 744), concluded that the trial judge after weighing evidence (including any that may be favorable to defendant) which necessarily requires the court to draw reasonable inferences therefrom, determine the credibility of witnesses, and then not simply decide whether the plaintiff has made out a prima facie case, but make a final determination and enter judgment for defendant if the plaintiff has not met his burden of proof by preponderance of the evidence.\nNot long thereafter some cases retreated to the prima facie standard: see Gray v. Schottmiller, 18 Ill. App. 3d 812, 815; People ex rel. Scott v. Convenient Food Mart, Inc., 21 Ill. App. 3d 97, 110; Rey v. Rey, 23 Ill. App. 3d 274, 276.\nThe last expression to date is in Jackson v. Spivey, 26 Ill. App. 3d 670, 674, where the court quoted extensively from the Hawthorn Mellody case apparently with approval.\nAt any rate, in support of their motion the defendants herein posed the question to the trial judge as follows: whether as a matter of law, plaintiff has presented a prima facie case for recovery such as to withstand defendant\u2019s motion.\nSo in ruling on the motion herein the trial court was required to evaluate evidence by determining credibility of witnesses, reasonable inferences to be drawn from their testimony, and, in general weight and quality of testimony, in order to conclude whether or not evidence to that point of trial made out a prima facie case in favor of plaintiff.\nCount i\nIn the instant case the trial judge made a finding, 9 9 9 The Court, however, feels there is not sufficient proof of any intoxication on the part of the injured party at the time he left the defendant\u2019s place of business, to wit, Last Resort Lounge\u201d.\nPrior to an amendment which became effective on August 19,1971, the language of the Dram Shop stated * 9 9 causes the intoxication [in whole or in part] 9 9\nThe language of the statute \u201cin whole or in part\u201d is used with reference to the persons who sell or give the liquor. The intoxication may be produced by liquor sold by one or by many persons, but when produced, all who in whole or in part cause the intoxication are liable. (Neuerherg v. Gaulter, 4 Ill. App. 348,350.) Did the alcoholic liquor served to Jackson in defendant\u2019s tavern contribute in some degree, no matter how slight, to Jackson\u2019s subsequent intoxication? (Osborn v. Leuffgen, 381 Ill. 295,298.) As stated in Lichter v. Scher, 11 Ill. App. 2d 441, 452, \u201c * * * the dramshop keeper, may become liable even though the sale was made to a customer when he was wholly sober, if the customer thereafter by drinks purchased elsewhere became intoxicated.\u201d\nJackson\u2019s testimony showed that he began drinking between 11 and 12 o\u2019clock at the defendant\u2019s tavern. He was sober on arrival, and had not eaten anything that morning. He met his friend Knudson and began drinking Vodka and 7-Up, he could not recall the exact number of drinks but it was more than one and that he and Knudson alternated in buying drinks. He was \u201cfeeling good\u201d when they left the tavern. Knudson testified that Jackson had 4 or 5 drinks of Vodka and 7-Up at defendant\u2019s tavern, and that Jackson was not sober when they left to go to the Helvitia where they resumed drinking. Jackson said he had 10 to 15 drinks there. Knudson said 4 or 5. Jackson there bought a bottle of Vodka which was consumed on his boat by Jackson, his brother and Knudson while enroute to the Arbor. They were refused service at the bar of the Arbor but a second bottle of Vodka was purchased there and on the trip from the Arbor to the sand bar was about three-quarters consumed. The accident happened between 3 and 4 o\u2019clock in the afternoon the same day.\nWe believe the judge\u2019s finding on this point to be against the manifest weight of the evidence.\nThe court also made a finding:\n\u201cThat the proof failed completely to show a casual connection between the injury complained of and whatever accident might have contributed thereto. \u201d *\nJackson drove his boat to a sand bar on the north end of Chain of Lakes where he anchored. A group began swimming. The group in Jackson\u2019s boat dropped into the water. Jackson then dove into the water. He testified:\n\u201cI dove from the back of the boat and I hit \u2014 I dove into shallow water and I hit the bottom of the sandbar, hit the sandbar and as a result I drowned. * * * I was still conscious. I had busted something. I couldn\u2019t move to get my head above water. I could see light but I could not get my head above the water line to catch air and as a result I did drown, or at least I lost consciousness.\u201d\nHis next memory was waking up in an ambulance. He could not move his arms or legs.\nKnudson testified that his first knowledge that Jackson had been injured was when \u201csomething passed me under the water and I reached down * * * it was a human body and it was Mr. Jackson, and he was totally unconscious and not breathing.\u201d\nWith the aid of some swimmers Knudson put Jackson into a rowboat and gave him mouth to mouth resuscitation in the boat until the rescue squad arrived.\nJackson was paralyzed from the neck down. He regained slight movement in his right arm and later in both arms. He spent months in hospitals. The total medical cost was about *100,000. From the time of the incident to time of trial he was confined to a wheel chair. He never returned to his former employment. At time of trial he had no hand function, could not walk. He had no motion in his legs, but slight motion in his arms and neck.\nThe plaintiff in an \u201cin consequence case\u201d as here has the burden of proving that Jackson\u2019s intoxication was the proximate cause of his injury. The question whether the accident was proximately caused by intoxication is one of fact to be determined in the light of the particular circumstances. (Cox v. Hrasky, 318 Ill. App. 287.) The question must be determined by the application of common sense to the facts of each particular case. Sparks v. Scharlaw, 171 Ill. App. 155.\nPlaintiffs case indicated that Jackson was a fairly'good swimmer and diver, that he had been to the sand bar in Lake Catherine before and had engaged in the same type of swimming and diving from the boat, that he was aware of the depth of the water just prior to his dive.\nDefendants argued in trial court and here that the dive off the boat would have been made with or without intoxication and thus intoxication could not be the proximate cause of plaintiff s injury in this case. They rely only on Danhof v. Osborne, 11 Ill. 2d 77. In that case the intoxicated person was deUberately attacked by a sober person for reason whoUy unrelated to the intoxication. Schwehr v. Badalamenti, 14 Ill. App. 2d 128,131-32, explains,\n\u201cHowever, it does not follow that intoxication must be the sole cause of the injury. In a death case, it is not the rule that death must have been caused merely by alcoholic poisoning. In most cases the death or injury is directly caused by some other agency, but intoxication is held the proximate cause, because the person could not cope with conditions as he could have if sober.\nExamples are: [citations].\nThese and many other cases show: it is only where the cause of injury or death would have occurred regardless of intoxication that it can be held as a matter of law the intoxication is not the proximate cause. If the intoxicated person is kfiled by lightning, or by the assault of a highwayman or burglar, or other means having no logical relation to the drinking, then intoxication cannot be the proximate cause. [Citations.] If a person in company with another man\u2019s wife is assaulted in jealous fury by the irate husband, who has not been drinking, drinking by the injured party is not the proximate cause. Danhof v. Osborne, 11 Ill. 2d 77.\nOn the other hand, if the drunk is frozen to death, or falls into a fire, or is drowned in a freshet, the intervening agent of frost, fire or freshet does not eliminate intoxication as the proximate cause. [Citations.] To hold the contrary would defeat the purpose of the statute, as is recognized in all these authorities.\u201d\nIn the instant case a headfirst dive into a sand bar was the logical cause of Jackson\u2019s trauma. There is an inescapable conclusion that considering the great quantity of alcohol imbibed by him that he suffered \u201can impairment of his mental facilities so as to diminish his ability to think and act with ordinary care.\u201d (Edenburn v. Riggins, 13 Ill. App. 3d 830.) It was not plaintiff s burden to show that the intoxication was the only cause of Jackson\u2019s injury. Schwehr v. Badalamenti, 14 Ill. App. 2d 128, 131.\nHere a drunk takes a headfirst dive into a sand bar, in an area with which he is familiar, and then suffers a paraplegic injury. It is difficult to perceive what more evidence is required to sustain the burden of proving causal connection. The usual burden of proof would seem to be no greater than to show that it was more probable that the event was caused by intoxication than that it was not. See IPI 2d No. 21.01.\nEven if, arguendo, Jackson was injured \u201cin getting the unconscious body from the water into the boat and then from the boat to the shore,\u201d such \u201cintervening cause\u201d would not preclude recovery. Schwehr v. Badalamenti.\nWe believe the trial judge\u2019s finding on this point to be against the manifest weight of the evidence.\nThe court stated, \u201cThe Court was not impressed by the argument that medical testimony to show causal connection between the alleged incident and the injury was not necessary \u00b0 \u00b0\nMedical opinions as to the cause of injury are competent evidence, because the average person knows litde of physiology or the other sciences involved and usually cannot determine the precise relationship between an event and a bodily condition that appears at a subsequent time. Granted that this medical testimony is admissible, does it then become essential to the plaintiff s case? May a plaintiff, whose chain of causation includes medical facts, leave the interpretation of those facts solely to the trier of the facts, without offering a medical opinion to support it?\nOn medical matters on which laymen are competent to judge, no expert testimony is required to permit a conclusion as to causation. 65A C.J.S. Negligence \u00a7244(4) (1966) states,\n\u201cMedical testimony is not necessary to prove the causal connection where the connection is clearly apparent from the illness and the circumstances attending it.\u201d Also see Haberer v. Moorman Manufacturing Co., 341 Ill. App. 521: Patargias v. Coca-Cola Bottling Co., 332 Ill. App. 117; Palmer v. De Filippis, 321 Ill. App. 186; Hyatt v. Cox, 57 Ill. App. 2d 293; Jensen v. Richardson, 93 Ill. App. 2d 237; Hiatt v. Finkl, 132 Ill. App. 2d 92; Turner v. City of Chicago, 95 Ill. App. 2d 38, 39-40; Wiacek v. Hospital Service Corp., 15 Ill. App. 3d 698, 701.\nWhere the injury complained of is remote in time from the accident or the condition is one that is shrouded in controversy as to origin, such as the intervention of either a prior or subsequent injury or disease, layman testimony may be insufficient to establish a prima facie showing of causal relationship. (Hyatt v. Cox, 57 Ill. App. 2d 293, 299.) Some courts have added a requirement that the symptoms of the injury be objective rather than subjective in order that lay testimony satisfy the quantum of proof required to make a prima facie case. Illinois has not added that requirement.\nOur Supreme Court has, at least twice, held, \u201cit was not necessary that causation be established [by] a medical witness.\u201d Gubser v. Industrial Com., 42 Ill. 2d 559,564; Union Starch & Refining Co. v. Industrial Com., 37 Ill. 2d 139, 144.\nThough the courts have tended to construe claims under the Workmen\u2019s Compensation laws rather liberally the quantum of proof required is the same as that in suits under general tort law.\nWe do not believe that an opinion of a medical expert was required in order for plaintiff to make a prima facie case herein.\nThe trial court stated that because \u201cJackson testified that he had between 10 and 15 drinks at the Helvitia Hotel but Knudson testified to a maximum of 4 or 5 drinks were had at the Helvitia, the court did not feel that Jackson was honest and forthright in his testimony.\u201d\nThe trial court is the sole judge of the credibility of the witness Jackson but even assuming that Jackson was in error on this point we see no reason to discredit the entire testimony presented by plaintiffs.\nWe have reviewed the evidence presented and find that as to Count I the plaintiffs did in fact present a prima facie case and we therefore find the judgment of the trial court as to Count I to be against the manifest weight of the evidence. We believe that in this proceeding the judgment as to Count I should be reversed and the cause remanded for a new trial before a different judge.\nCount ii\nThe trial court found \u201cThat the complaint has not been sufficient to allege an injury to the property of the wife since there was no allegation in the complaint that she was called upon to expend any of her own moneys or funds nor any proof on that point.\u201d\nCount II was an \u201cin consequence\u201d complaint brought for damage to property. Mrs. Jackson invoked the Family Expense Act and alleged that she suffered damage to her property in that she spent money for Jackson\u2019s treatment and became liable for future medical care. Throughout she has stated, \u201cplaintiff premised her theory of recovery on the \u2018in consequence\u2019 of intoxication and did not allege that she was injured in her property * * 9 \u2018by\u2019 an intoxicated person.\u201d\nAt trial she did not prove some direct physical injury to her tangible real or personal property but did attempt to prove that she had paid considerable medical expenses from joint savings, that through her employment she had been supporting the family, and she had legal liabilities under the Family Expense Act. In short, she was attempting to prove \u201cinjury to her property.\u201d Fortner v. Norris, 19 Ill. App. 2d 212, 216; Shepherd v. Marsaglia, 31 Ill. App. 2d 379, 386; Kelly v. Hughes, 33 Ill. App. 2d 314, 317.\nPrior to 1955 all \u201cinjury to property\u201d cases of this nature had been brought under the \u201cin consequence theory.\u201d Lousberg, Dramshop: Injury to Property, 51 Ill. B.J. 810, 815 (1963).\nIn 1955 the Dram Shop Act was amended (Ill. Rev. Stat. 1955, ch. 43, par. 135), and the pertinent portion of the amended act as it now reads is:\n\u201cEvery person who is injured in \u00b0 \u00b0 0 property by any intoxicated person, has a right of action in his own name 9 9 9 \u201d Ill. Rev. Stat. 1975, ch. 43, par. 135.\nSection 14 of article VI of the Dram Shop Act creates two separate and distinct causes of action. One gives a remedy to those injured \u201cin person or property by any intoxicated person\u201d and the other creates a cause of action \u201cfor injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person\n9 9 9.\u201d The 1955 amendment to this section separates the action for injuries to person or property \u201cby an intoxicated person\u201d from injuries to loss of means of support which can be occasioned either \u201cby an intoxicated person\u201d or \u201cin consequence of the intoxication * * * of any person.\u201d Hernandez v. Diaz, 31 Ill. 2d 393, 397. See 1958 U. Ill. L. F. 191, 194.\nThe 1955 amendment by removing the words \u201cor in consequence of the intoxication 9 9 9\u201d limited the theory of action for \u201cinjury to property\u201d to injury caused \u201cby\u201d an intoxicated person. 51 Ill. B.J. 810, 811 (1963); Hernandez v. Diaz, 31 Ill. 2d 393, 396-97.\nWe are not saying that expenditures made by a wife on behalf of a husband injured by his own intoxication are noncompensible, \u2014that would be contrary to the result in Shepherd v. Marsaglia (a \u201cby\u201d count, page 382). We are saying that the remedy for injury to property must be based upon injury \u201cby\u201d an intoxicated person.\nThe judgment as to Count II is affirmed.\nReversed as to Count I and remanded for a new trial; affirmed as to Count II.\nT. J. MORAN, P. J, and RECHENMACHER, J., concur.\nRule 41(b) declares that on a defendant\u2019s motion at the close of plaintifFs evidence \u201cin an action tried by the court without a jury the court as trier of the facts may then determine them \u00b0 \u00b0\nThe bracketed words were eliminated by the 1971 amendment which has been held not to be retroactive. Edenbum v. Riggins, 13 Ill. App. 3d 830.\nThere is not a scrap of evidence that this happened.", "type": "majority", "author": "Mr. JUSTICE DIXON" } ], "attorneys": [ "Joseph R. Curcio and Sidney Z. Karasik, both of Chicago, for appellant.", "William G. Rosing and James T. Magee, both of Rosing & Carlson, of Waukegan, for appellee." ], "corrections": "", "head_matter": "CAROL JACKSON, Individually and for the use and benefit of Debra Ann Jackson, a Minor, Plaintiff-Appellant, v. CHARLES NAVIK et al., d/b/a Helvitia Hotel, et al., Defendants.\u2014(WALTER KOESTER, a/k/a Walter Kessler, d/b/a Last Resort Lounge, Defendant-Appellee.)\nSecond District (2nd Division)\nNo. 74-375\nOpinion filed April 2, 1976.\nJoseph R. Curcio and Sidney Z. Karasik, both of Chicago, for appellant.\nWilliam G. Rosing and James T. Magee, both of Rosing & Carlson, of Waukegan, for appellee." }, "file_name": "0088-01", "first_page_order": 116, "last_page_order": 125 }