{ "id": 5040247, "name": "Dorothy Bejnarowicz et al., Appellants, v. Mary Bakos, Impleaded with George Kmiotek et al., Appellees", "name_abbreviation": "Bejnarowicz v. Bakos", "decision_date": "1947-06-25", "docket_number": "Gen. No. 43,744", "first_page": "151", "last_page": "159", "citations": [ { "type": "official", "cite": "332 Ill. App. 151" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "392 Ill. 172", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2515550 ], "opinion_index": 0, "case_paths": [ "/ill/392/0172-01" ] }, { "cite": "305 Ill. App. 571", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3267685 ], "opinion_index": 0, "case_paths": [ "/ill-app/305/0571-01" ] }, { "cite": "165 Ill. App. 222", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2802905 ], "opinion_index": 0, "case_paths": [ "/ill-app/165/0222-01" ] }, { "cite": "251 Ill. 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3436049 ], "opinion_index": 0, "case_paths": [ "/ill/251/0028-01" ] }, { "cite": "339 Ill. 276", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241041 ], "opinion_index": 0, "case_paths": [ "/ill/339/0276-01" ] }, { "cite": "143 Ill. 358", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3081799 ], "opinion_index": 0, "case_paths": [ "/ill/143/0358-01" ] }, { "cite": "10 N. H. 92", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6754617 ], "opinion_index": 0, "case_paths": [ "/nh/10/0092-01" ] }, { "cite": "71 Ill. 273", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311024 ], "opinion_index": 0, "case_paths": [ "/ill/71/0273-01" ] }, { "cite": "86 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2770895 ], "opinion_index": 0, "case_paths": [ "/ill/86/0106-01" ] }, { "cite": "134 Ia. 172", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2152242 ], "opinion_index": 0, "case_paths": [ "/iowa/134/0172-01" ] }, { "cite": "162 Ill. App. 108", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2730906 ], "opinion_index": 0, "case_paths": [ "/ill-app/162/0108-01" ] }, { "cite": "321 Ill. App. 406", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2423264 ], "opinion_index": 0, "case_paths": [ "/ill-app/321/0406-01" ] }, { "cite": "326 Ill. App. 171", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4943768 ], "opinion_index": 0, "case_paths": [ "/ill-app/326/0171-01" ] } ], "analysis": { "cardinality": 615, "char_count": 11406, "ocr_confidence": 0.528, "pagerank": { "raw": 1.597018681086685e-07, "percentile": 0.683208750780451 }, "sha256": "acb15bf4e3e8442a780008654925fcc4ccc642253daf1f7cd5097c026defe305", "simhash": "1:ad43f5ac42e8ad41", "word_count": 1896 }, "last_updated": "2023-07-14T17:02:04.205964+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dorothy Bejnarowicz et al., Appellants, v. Mary Bakos, Impleaded with George Kmiotek et al., Appellees." ], "opinions": [ { "text": "Mr. Justice Kilby\ndelivered the opinion of the court.\nThis a dramshop action brought by the widow and two minor children of Frank Bejnarowicz, who died of injuries suffered when he drove his automobile into a street car. The owners and operators of three taverns were originally made defendants. George Kmiotek died after suit was commenced and Robert Spika was dismissed from the case. At the close of plaintiffs\u2019 case a verdict was directed in favor \u00f3f Catharzyn Kmiotek. The cases against the other defendants went to the jury. The jury returned 9 verdicts as to the defendants still in the case. These found the defendants jointly and severally not guilty as to each plaintiff. The jury returned two special verdicts, one that decedent was intoxicated as charged in the complaint and the second that he was not sold or given intoxicating liquor in Agnes Spika\u2019s building. Plaintiffs have appealed from the, judgment based on the eleven verdicts. No cross error is assigned affecting the verdict as to intoxication.\nThe decedent was 32 years old. He worked until 1:00 A. M. October 3, 1943. At about 4:00 A. M. he drove his automobile containing several other persons south on the wrong side of Western Avenue \u201chead on\u201d into a northbound Western Avenue street car. The motorman of the street car testified that decedent\u2019s automobile was traveling south and \u201ccoming in head into me. I pounded the gong, applied the brakes, and the next thing there was a collision.\u201d\nAt the request of the defendants, Sophie Elhenicky, Steve and Mary Bakos, the court gave a peremptory instruction under which the plaintiffs were required to prove that the decedent\u2019s injuries were the proximate result of his intoxication. The parties do not dispute that the Dram Shop Act, Chap. 43, Par. 135 [Jones Ill. Stats. Ann. 68.042], provides causes of action for injuries to means of support \u201cby an intoxicated person\u201d and \u201cin consequence of the intoxication of any person.\u201d They do not dispute either that, where the cause of action is for an injury by an intoxicated person, plaintiffs are not required to prove the element of proximate cause, whereas in causes of action for injuries in consequence of the intoxication of any person, proof of that element is necessary. These rules have been repeatedly held to be the law of Illinois. Cope v. Gepford, 326 Ill. App. 171; Hill v. Alexander, 321 Ill. App. 406; Whiteside v. O\u2019Connors, 162 Ill. App. 108.\nPlaintiffs contend, however, that the instant action was based upon an injury by an intoxicated person and that, accordingly, the peremptory instruction incorrectly stated the law and constituted prejudicial error. The defendants who submitted the instruction contend that plaintiffs\u2019 pleading presented an \u201cin consequence of\u201d and not a \u201cby\u201d cause of action; that the instruction was, therefore, correct; and that in any event plaintiffs cannot change their theory in this court. We agree with the contention about the cause of action to the extent that though the facts pleaded by plaintiff 'state a \u201cby\u201d cause of action, the conclusion of the pleader, on the facts stated, is an \u201cin consequence of\u201d cause of action. There is no controversy over the facts surrounding decedent\u2019s injuries. These facts were set out in plaintiffs\u2019 pleading. It is manifest, therefore, that the trial court misconc\u00e9ived the nature of the cause of action in giving the instruction upon the facts in the case if, as plaintiffs contend, the facts show an injury by an intoxicated person.\nSuicide by an intoxicated person has been held to be an injury \u201cby an intoxicated person\u201d to means of support. Whiteside v. O\u2019Connors; Bistline v. Ney Bros., 134 Ia. 172. This holding has broadened the concept of \u201cby\u201d injuries beyond those inflicted by third person intoxicants. A third person intoxicant may intentionally injure a wife in her means of support by assaulting her husband or unintentionally as by staggering against him. A suicide is an intentional act, despite intoxication, and we do not doubt that a self-inflicted wound through accident by an intoxicated husband would give a cause of action to the wife for an injury \u201cby an intoxicated person.\u201d If the decedent in this case intentionally drove his automobile into the oncoming-street car, it should give rise \"to a cause of action by an intoxicated person. It seems to us, therefore, to follow that if we took the evidence as showing that decedent unintentionally drove into the street car, that the cause of action arising in favor-of the plaintiffs was also for an injury by an intoxicated person. We think this conclusion is strengthened by illustrations of kinds of injuries to means of support, which are considered to be \u201cin consequence of the intoxication of a person.\u201d King v. Haley, 86 Ill. 106; and Whiteside v. O\u2019Connors. In Bistline v. Ney, a leading case on the subject, the Iowa court said that there is a presumption that an act done to the injury of his family by a person whose faculties are abnormally excited or confused by drink, especially where the act is not that of a sane or sober person, is-the result of his intoxication. We believe the court erred in giving the instruction.\nWhile the defendants were putting in their cases, Mrs.e Kmiotek was called as a witness in behalf of Sophie Elhenicky. Counsel for the latter questioned the witness about an agreement to pay, or a payment to the plaintiffs, in settlement of their claim against her. Plaintiffs\u2019 counsel .objected several times but failed to object to some of the questions. The court sustained some objections and overruled others. The witness answered questions to which objections were sustained. Counsel who called the witness persisted in seeking to break down the witness\u2019s answers that she made no such agreement or payment. While one of her answers is ambiguous, we think that the only fair inference from the entire examination and cross-examination is that the witness said she had not' agreed or paid. Counsel then proceeded to question the witness about conversations she had with the co-defendant Agnes Spika with reference to such agreement or payment. Plaintiffs\u2019 counsel objected that Sophie Elhenicky could not impeach her own witness. He had theretofore objected to the cross-examination of her own witness.\nCounsel for Agnes Spika cross-examined the witness, saying \u2014 \u201cWe are trying to prove by this witness in defense of \u00f3ur case that there was an agreement to settle the claim against the witness.\u201d Subsequently, he called Agnes Spika to testify to the conversation with Mrs. Kmiotek. Plaintiffs\u2019 counsel conceded that an agreement to pay or a payment could be shown, but objected that the procedure being followed was improper. Agnes Spika was permitted to testify that Mrs. Kmiotek told her that \u2018 she was through and she paid $750. She didn\u2019t say to who, or anything, but she was through with the case, that is all. \u201d Plaintiffs \u2019 counsel moved to strike this testimony on the ground that there was no showing that Mrs. Kmiotek said she had agreed to pay, or had paid money to plaintiffs or anyone for them. The objection was overruled. Plaintiff Dorothy Bejnarowiez was called in rebuttal and denied any agreement to receive, or the receipt of any money from Mrs. Kmiotek.\nWe think the.concession by plaintiffs\u2019 counsel at the trial waived plaintiffs\u2019 right to complain that the pleadings did not justify questioning Mrs. Kmiotek with reference to a payment to, or an agreement to pay, the plaintiff, widow.\nThere can be only one recovery for an injury done under the Dram Shop Act, and satisfaction by a party injured against one defendant constitutes an effective bar to recovery against another. Emory v. Addis, 71 Ill. 273. Defendants were entitled to show any agreement between plaintiff, widow, and Mrs. Kmiotek to pay, either in full or partial satisfaction of plaintiff\u2019s damages. Restatement of Law on Torts, Sec. 885; Snow v. Chandler, 10 N. H. 92; City of Chicago v. Babcock, 143 Ill. 358; Garvey v. Chicago Rys. Co., 339 Ill. 276; Devaney v. Otis Elevator Co., 251 Ill. 28; Gore v. Henrotin, 165 Ill. App. 222; Caruso v. Chicago, 305 Ill. App. 571. The showing of an agreement amounting to a release, or payment in full of the actual damages, would entitle the remaining defendants to judgments in their favor; and a showing of partial release or partial payment of the actual damages could be availed of by the remaining* defendants to diminish the amount of damages recoverable against them. (See same authorities.) It is not clear from the record in this case precisely what the defendants\u2019 position was. From the statement of counsel it would appear they would rely upon a settlement. The error of the court was not in permitting the attempt to show the agreement, but in permitting defendants to make the attempt in such an irregular manner.\nWhen it appeared that Mrs. Kmiotek testified she did not agree to pay, counsel calling her should have been restrained from trying to change her answer. Assuming that the calling of Agnes Spika was proper for impeachment purposes, her testimony should have been stricken since it did not contradict Mrs. Kmiotek\u2019s testimony that she did not pay or agree to pay plaintiffs for her release from the case. Parties should know before calling witnesses, to the stand what these witnesses will testify to. Impeaching witnesses should not be called to testify unless their testimony will impeach. Plaintiffs did not waive their right to complain of this prejudicial procedure by introducing the rebuttal testimony on the point. Kane v. City of Chicago, 392 Ill. 172.\nAgraes Spika was not named in the peremptory instruction hereinbefore criticized. The jury found in a special verdict that no intoxicating liquor was sold to the decedent on the premises owned by her. For these reasons she contends that although we should find prejudicial error in the trial of the case, the judgment as to her should not be reversed. She says that the questioning of Mrs. Kmiotek did not bear upon liability but upon damages. While that may be so, we cannot agree that the procedure may not have influenced the jury on the question of liability. The defendants also urge that the result of the procedure involving Mrs. Kmiotek\u2019s testimony could not have prejudiced plaintiffs because her answers were in their favor. We think the procedure criticized could be fairly said to have deprived plaintiffs of an impartial trial.\nBecause of our conclusions on the foregoing points we believe that the case should be retried. We shall not, therefore, consider the question of the manifest weight of the evidence.\nFor the reasons given the judgment of the Superior Court is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nLews, P. J., and Burke, J., concur.", "type": "majority", "author": "Mr. Justice Kilby" } ], "attorneys": [ "Dooley & Baker and Fishman & Fishman, all of Chicago, for appellants; James A. Dooley, of Chicago, of counsel.", "Lord, Bissell & Kadyk and John F. O\u2019Toole, all of Chicago, for certain appellees; Leonard F. Martin and Edward S. Crowell, both of Chicago, of counsel.", "Barrett, Barrett, Costello & Barrett, of Chicago, for certain other appellee; Sidney M. Click, of Chicago, of counsel." ], "corrections": "", "head_matter": "Dorothy Bejnarowicz et al., Appellants, v. Mary Bakos, Impleaded with George Kmiotek et al., Appellees.\nGen. No. 43,744.\nOpinion filed June 25, 1947.\nRehearing denied September 18, 1947.\nReleased for publication September 18, 1947.\nDooley & Baker and Fishman & Fishman, all of Chicago, for appellants; James A. Dooley, of Chicago, of counsel.\nLord, Bissell & Kadyk and John F. O\u2019Toole, all of Chicago, for certain appellees; Leonard F. Martin and Edward S. Crowell, both of Chicago, of counsel.\nBarrett, Barrett, Costello & Barrett, of Chicago, for certain other appellee; Sidney M. Click, of Chicago, of counsel." }, "file_name": "0151-01", "first_page_order": 173, "last_page_order": 181 }