*1 RAITHEL, Plаintiff-Appellee Cross-Appellant, v. DUSTCUT WILLIAM (Three Tavern, TER, INC., Defendant-Appellant Cross-Appellee Point Defendant).
Inc., Fourth District No. 4 — 93—0875 Opinion May filed COOK, J., concurring. specially Ellison, Klockau, McCarthy, Marquis,
Robert L. Ellison & of Rock Island, appellant. McElvain, McElvain, Bloomington,
Mike of Law Officeof Mike appellee. *2 opinion
JUSTICE LUND delivered the of the court: In an damages personal injury action to recover under section (Act) (Ill. Dramshop 6 — 21 of the par. Act Rev. Stat. ch. 135), jury a plaintiff returned a verdict in in the favor amount of $47,764.64. granted trial, The trial court motion for a new finding damages manifestly inadequate. awarded were The new trial solely damages, jury was limited and issue this new damages. judgment trial awarded The court entered $30,000, statutory personal injury maximum for under the (1) Act. On appeal, defendant contends the trial court erred in (2) limiting damages only; the new trial to the issue of аnd into treating physician’s evidence a testimony regarding a blood- performed alcohol test on Plaintiff cross-appeals, claiming the trial reducing $30,000. court erred in the award to We affirm. injured
Plaintiff was in a May one-car automobile accident on vehicle, 1990. The Rongey, began drinking driver of the Charles at (Dustcutter) Illinois, the Dustcutter Tavern Bloomington, at 7:45 a.m. stayed p.m. and until plaintiff Rongey 3:15 when arrived. arrived, estimated he drank between plaintiff 10 and 20 beers. When Rongey gave money get him and him asked to them a drink. Plaintiff three-quarters drank Rоngey of a mixed drink he before and decided Havana, Illinois, to drive to go fishing. to Plaintiff home went after, change bathe and clothes. Rongey picked up Soon him at his (Three they home and drove 45 minutes to the Three Points Tavern Points) sandwiches, drink, on They Route 136. ate а had and left p.m. afterward, about 5:30 Rongey asleep Sometime at fell the wheel road, and the severely truck ran off the injuring plaintiff. Rongey appear any testified that did not intoxicated at day
time on the Rongey the accident. testified he drunk at accidеnt, time of the police driving because cited him for under the However, signing influence of alcohol. he admitted a statement on December he not think did he was drunk at time on the jury date of the accident. The a returned verdict favor against of Three Points and Dustcutter. motion, urged the trial court to order post-trial
In its Dustcutter refused, finding that issues a new trial on all issues. The trial court distinct, and damages liability adequately separate were and liability appeal, the verdict. On de- amply supported that evidence on comрro- a was the result of fendant contends that granted be question liability and a new trial should mise on the all issues. App. 27 Ill.
Defendant cites Kinsell v. Hawthorne not be principle that a new should for the damages awarded damages only, appears awarded on wherе it (Kinsell, liability. compromise were the result of a 681-82.) portrays Defendant 2d at 169 N.E.2d at points He out that liability hotly issue in this case as contested. establishing Rongey was conflicting was heard whether affirmative actually was also instructed on the intoxicated. he drank alcоhol with complicity. defense of Plaintiff conceded could at taverns. The was instructed both voluntarily participated, damages if it found that he had not recover extent, drinking in the which led and substantial to material the fact that the Finally, points defendant out Rongey’s intoxication. This, de against Dustcutter. jury found in favor of Three Points compromise verdict. argues, proof is further of a fendant trial, that his on direct examination At the first testified counsel then Plaintiff’s medical bills totaled *3 $15,000 paid. of this had been if true that all but asked him it was deliberations, During jury thе agreed statement. with the $63,000 $15,000 for or asking whether it should sent a note it had all the evidence damages. replied The trial court that medical The continue deliberations. it needed and should and instructions of $15,000 part of a total award expenses medical as jury awarded $63,000 trial, the full $47,764.64. jury the awarded After the second $86,862. The difference a total award of expenses part as of medical $39,000. Clearly, this is the two awards between the jury’s confusion over result of the primarily is the difference properly award —a situation expеnse it should of medical amount examination. created, note, testimony on direct by plaintiff’s own we that, the is the fact the two awards only difference between The other suffering, the second $21,500 whereas pain and jury first awarded only on this issue. jury awarded damages appropriate of is question limited to a A new trial amply (1) liability question of jury’s verdict where the (2) liability evidence; damages and questions of the supported by the question a trial limited distinct separate and are so (3) defendant; suggests and the record damages is not unfair to the that, compromise verdict nor in some jury neither that the reached awarding manner, jury’s in the identifiable the error which resulted question of inadequate damages also affected its verdict on the liability. Freight Cooperative v. Terminal Association Balestri Ill. cоmpromise find no indication of a verdict this case. We easily The difference in the amount of the two awards is explained by jury’s expenses. Nor do we confusion over medical compromise view the verdict in favor of Three Points as evidence of a Rаther, jury’s probably verdict. decision is most due to the fact sum, consumed only In one drink at this establishment. evidence; amply questions verdict was supported liability damages distinct; were and we find no evi verdict, compromise dence of a nor indication that the error causing inadequate award affected the verdict or the liability. We find no error in the trial decision limit court’s issues damages in the only. new
Next, defendant contends the trial court erred in evidence, objection, into testimony regarding over defendant’s a blood perfоrmed on sometime after the accident. Dr. Charles Montgomery, plaintiff’s treating physician, deposed prior was to trial deposition jury. and his deposition, was read to the At the evidence plaintiff’s counsel Montgomery asked Dr. on redirect examination any lаboratory whether performed tests were to determine alcohol plaintiff’s system. Montgomery levels in replied that such a test performed negative. was and the result was He that the lab added objected test was testimony routine. Defense counsel to this at the de trial, position, and at insufficient foundation. The trial court ruled that evidence of the blood while not admissible as evidence, part substantive was admissible as of the material relied upon by doctor his treatment The was evidence, instructed not to consider thе blood test as and that weigh limited purpose allowing test was admitted for the it to opinions and evaluate the of the witness. strong plaintiff’s
Defendant contends there com plicity Rongey’s paramedics they testified drunkenness. Two immediately smelled accident. liquor brеath after the hours Rongey’s company fact he had been in for the last 2½ *4 theory complic prior supports to the accident further defendant’s ity. by complicity prejudiced Defendant contends that its defense was allowing negative test. the to hear evidеnce of a blood-alcohol result, test, many responds just that this and its one of discussing Furthermore,
the doctor listed in treatment. argues through depositions that the was informed paramedics that intravenous fluids were administered hours before the blood-alcohol test. uрon (1981), court relied Wilson v. Clark 84 Ill. 2d principle unnecessary hospital
417 N.E.2d
for the
that it is
expert
records to be admitted into evidence
order to elicit an
1326.)
(Wilson,
opinion.
medical
Admission of medical-record is еvidence recently Court Rule which was amended to include medical re- (145 exception hearsay cords under the business-record to the rule. 236.) Any exception Ill. 2d R. document admissible under this must by (1992), proper People first be authenticated v. Turner foundation. 449, 453, 599 N.E.2d testimony find the trial court erred in into evidence We However, requisite of the foundation. blood-alcohol without the any prejudice are suffered as a we not convinced defendant Complicity predicated upon plaintiff’s result of this error. is not con- injury, only upon to his but his contribution tribution actively to or Only inebriate’s intoxication. one who contributes precluded recovery. from procures the intoxication of inebriate (Nelson 641.) v. 69 Ill. 2d Ev- Araiza clearly majority Rongey’s the vast inebriation was idence indicates at work. Evidence is uncontroverted procured while was still joining Rongey drinking for over seven hours before had been Rongey, and Plaintiff shared two drinks with up with alcohol for him. We find purchased is no that he ever there evidence minimal, Montgomery’s mention complicity to be and Dr. case. little harm to defendant’s of a routine medical test did erred cross-appeals, the trial court Finally, plaintiff $86,862 award, was awarded reducing damage where a total in a already from jury. Plaintiff had received award, action, against amount was set off and that $30,000, this amount tо leaving The trial court reduced (See under the Act. personal injury for a statutory maximum *5 135(a).) 1991, 43, provides sepa The Act also a par. ch. Ill. Rev. Stat. $40,000 statutory support. limit loss of means of rate any person sep make wording of the statute allows points out that dаmage, and loss to means personal injury, property arate claims for Accordingly, he should be able to claim support. contends $11,000, sepa wages, which under his lost total support. category rate of loss means wages may or her lost as a claim fоr Whether a claimant use his we need not support loss of his or her own means of no reference to complaint address in this case. Plaintiff’s contains separate Each any injury support. as a result of loss to means of might separate recovery сause of action which a be had shall be (Ill. 110, par. stated in a count. Rev. Stat. ch. 603(b).) properly The trial court reduced the award to the 2 — statutory limit of
Affirmed. P.J.,
McCULLOUGH, concurs. COOK, concurring: specially JUSTICE majority admitting holds the in trial court erred the blood- requisite alcohol test as a business record without the foundation. At one time medical records could not be admitted under business rule, exception hearsay record prohibition but (145 236.) eliminated in 1992. 2d Ill. R. For foundation it is not neces sary preparer testify, preparer that the of the records or that the be (1991), shown to be (People App. unavailable. v. Lendabarker 215 Ill. 580.) 540, 559-60, necessary 3d 575 N.E.2d Nor is it testify. required custodian of the records All that is is that someone familiar operation testify with the business and its mode of at trial (Preski as to the prepared. manner in which the record was v. War (1982), 641, 650, chol 111 App. Construction Co. Ill. 3d 444 N.E.2d 1111.) Anyone may familiar procedure with the business and (Birch (1985), testify as to the Township records. v. Drummer 806.) 397, 407, App. Ill. 3d A privileges 487 N.E.2d doctor with at a hospital may sufficiently be hospital familiar with some records to testify to their introduction. Montgomery’s by-
Dr. hospital may use of tests taken also be compared gathered by to the use an- one business of information prove up other business. A business can records of another business (2 which possession it has its if it verified those records McCormick (4th 1992)) (Ar- on Evidencе at 278 ed. or commissioned them § gueta Chicago v. Baltimore & Ohio Terminal R.R. Co. 392). 11, 21, Testimony of the business business,
receiving acting the information is sufficient when that course, regular integrates the information received into its own re- cords, day-to-day operations, relies information its surrounding Graham, circumstances indicate trustworthiness. M. 803.10, Cleary & Graham’s Handbook of Illinois Evidence at 651 § (5th 1990). ed. Montgomery Hospital. treated at St. Francis Dr.
Montgomery testify was allowed to that the notes of testing May hospital indicate that fluids were drawn for negative p.m., аt and that the fluids tested for blood-alcohol. 10:42 Montgomery treating Whether or not Dr. relied on that relied on the plaintiff, it seems clear that the doctor could have *6 any doing if so. and would have relied it there was reason for clearly purported The test here so was what it to be that the burden showing party opposing otherwise should rest on the admission. justification requiring There is no in this case for that some other called, may who have known less about the test than the witness be doctor. argues p.m. blood-alcohol level аt 10:42
Defendant relevant, relevant level was the level at the time is not however, accident, objection, That of the some four hours earlier. weight admissibility. properly The trial court could goes to and not to event, it was worth. In allowed the test to come for what have agree majority prejudiced I that defendant was not with the limited admission of the test here.