author: JUSTICE CROW

text:
    Richard S. Day, Plaintiff-Appellant, v. Barber-Colman Company, Defendant-Appellee.
    Gen. No. 10,894.
    Second District.
    June 14, 1956.
    Released for publication July 3, 1956.

      Knight, Ingrassia & Bourland, of Rockford, for appellant; Stanley J. Roszkowski, of Rockford, of counsel.
    Hyer, Grill & Brown, of Rockford, for appellee; Robert C. Grill, of Rockford, of counsel.
   JUSTICE CROW

delivered the opinion of the court.

The plaintiff, Richard S. Day, obtained a verdict for $9,500 by a jury against the defendant, Barber-Colman Co., for injuries received while he was assembling and installing an overhead vertical door manufactured and sold by the defendant. The trial court granted a motion of the defendant for judgment notwithstanding the verdict and entered a judgment for the defendant. The plaintiff appeals from that judgment.

The complaint charges that on February 12, 1951, the plaintiff was employed by one A. Dobnick of Rockford; that Dobnick was requested by the defendant to install the overhead, vertical door which it manufactured and had sold to the Yates American Machine Company in Beloit, Wisconsin, to be used in their factory; and that while the plaintiff was assisting in such installation and while in the exercise of due care and caution, and as a proximate result of defendant’s negligent conduct, the door fell upon him, by reason of which he was severely injured and suffered great damage. The complaint, in substance, charged the defendant with negligently failing to have a proper stopping device on the door which would have prevented it from falling upon the plaintiff during assembly and installation, and in failing to have any stopping mechanism that would prevent the turnbucldes from breaking if the door became overbalanced and began to fall. The defendant’s answer denied the allegations as to the plaintiff’s due care, the defendant’s duty, negligence, and proximate cause. Other features of the pleadings need not now be noted. The plaintiff’s theory is that the defendant was negligent in the design, manufacture, and testing of the door.

The defendant’s theory is that there was no evidence fairly tending to prove negligence, proximate cause, or absence of contributory negligence, and there was affirmative proof of contributory negligence, as a matter of law.

Many of the facts are not in dispute. The assembling and installation of the door, weighing some 500 pounds, took place at the plant of the Yates American Machine Company in Beloit. The plaintiff was on and prior to February 12,1951 employed by Dobnick, was a licensed and experienced mechanic, on that date was assisting Dobnick in the installation, and was working below the door, engaged in picking up some tools, block and tackle, etc. The door, manufactured and sold by the defendant, was suspended in its tracks in the “up” position and remained “up” possibly for as long as 15 minutes before it fell. The total weight was approximately 1,000 pounds, comprising a 500 pound door and 500 pounds of weights holding it up. It was designed to go straight up and down by rollers thereon set in tracks on either side similar to a residential garage door, assisted by counterbalancing weights suspended by chains attached by turnbuckles designed to adjust the length of the chains. The door was motionless immediately before it fell. Dobnick was at the time securing some weights in place. The plaintiff knew, of course, that if at a particular point in the assembling process the installer had overbalanced the door with weights so that it was then weight heavy and door light, the door necessarily would rise, unless some mechanical steps had been taken to prevent its rising, and, as the plaintiff says, it would have been common sense to anchor it. The door was open, or in an up position, just before the incident happened, and the installers were preparing to attach the last weight. For some reason the door suddenly moved from its stationary position, evidently rose too high, the turnbuckles broke from the weight of the door causing them to rise over the sprocket wheels, which accommodated the chains holding the weights, and the door then fell, striking the plaintiff.

The plaintiff had never received any personal instructions as to this particular installation, but there were printed instructions from the defendant (though they were not in evidence, and there was no evidence as to what they were). He had been trained on the job by the defendant and Dobnick, and had previously installed many other similar doors, but none of this particular type. At the time, he was working, he said, in accordance with the written instructions, and he had had no prior accident of this type.

The various sections of the door, to be set in the tracks and hinged together, and the other parts of the door assembly, were manufactured by the defendant and sent by it in disassembled parts to the place of installation, to be assembled and installed by the installer; they were assembled and installed by the use of a block and tackle; it was necessary to raise the door manually during assembly and installation by block and tackle, to insert the several sections and attach the counterbalancing weights; and it was supported' thereby during that time. After the installation was completed, an electric operating device would control, move, and stop the door. The plaintiff knew he could-effectively arrest the movement of the door up or down during assembly and installation by means of what are' called “0” clamps and a block (and evidently the block- and tackle also aided in controlling the door during that process). He had, in fact, used a “C” clamp, a simple mechanical device, during some part of this particular installation, which clamp was put in the track and roller mechanism in order to hold a wedge in place and thereby keep the door from moving while being installed. There were no stops, however, included in the box sent by the defendant for the installer to arrest the movement of the door during assembly and installation. The turnbuckles were not designed or intended to bear the kind of bending stress they received here; they are not stopping devices, but are designed to adjust the length of the chain. The plaintiff knew the electrical operating device had not yet been installed.

The disassembled parts of the door when assembled and installed formed a safe door, with án electrical control device to control its movements. There is no proof the door when installed was not a safe, properly functioning door. Dobnick was an independent contractor engaged in the business of assembling and installing such doors, was in complete charge of that process, and the defendant had and exercised no control over that.

The plaintiff called one Harold Helton, an engineer, as a witness, who was formerly employed by the defendant in charge of engineering of the door division, and he was familiar with the door here involved. He said there was no convenient or customary way to install the electrical control device for the door until after the door was installed. He said when the door got around the turnbuckles and the turnbuckles got around the sprocket wheel there was a bending stress1 and the turnbuckles bent and broke. In his opinion, if a block or “C” clamp had been securely fastened at the time, the door would not have risen. He testified that the door at that time was not equipped with a staggered lift chain. The purpose of a staggered lift chain would have been to stagger the turnbuckles on either side one higher than the other, so that if the door during installation ever went high enough and the turnbuckles went over the sprockets, one turnbuckle would break before the other broke, thus supporting the door at least from one side only, causing it to bind in the tracks rather than fall straight down. He also said he had something else besides a possible staggered lift chain in mind that would have prevented the door going up and over the turnbuckles (though what he had in mind he did not say). He testified further, how-, ever, that he had had nothing in mind for a staggering arrangement of the chain (or anything else of a similar nature apparently) at the time of or prior to the incident here concerned, there were no plans at that time' for any stop on the door during installation, and evidently á so-called staggered lift chain was not at that time in the industry an accepted or customary part of, the art of manufacture of the door. There is no evidence that at that time any different general design for a door of this type than the one here involved was in common or accepted use in the industry, or that this design had been found to be unsafe. His testimony as to some possible change in design related to a matter apparently' occurring to him some years after this incident. His testimony in that respect was given some four years after this door was installed. ■

It appears that a “C” clamp is one of the standard, ordinary installation tools or means used by installers in the process of installation. It is used to keep the door from going up or down during assembly and installation, if it is securely fastened. The “C” clamps had been brought to the job by the installers in this case, had at times been used here, but apparently were not in use at the particular time this door fell.

■ The door was not a new type of door. It was made according to a standardized design or drawing, modified only as to size to fit a particular opening for which it was designed. There is no proof of any defective materials used by the defendant in the manufacture of the disassembled parts of the door, or of any failure to use due care as to any testing or inspecting thereof, or of what testing and inspecting procedures were at the time current in the industry, or considered adequate.

We are confronted at the outset with the question as to whether there is any competent evidence, standing alone, together with any reasonable inferences to be drawn therefrom, taken with its intendments most favorable to the plaintiff, to support the charge that the defendant was negligent in the design or manufacture of the door, or to prove the other material elements of the plaintiff’s case. If not, the defendant’s motion for judgment notwithstanding the verdict was properly allowed: Lindroth v. Walgreen Co. (1950) 407 Ill. 121. Upon such a motion we can consider only the competent evidence: Hunter v. Troup (1924) 315 Ill. 293. Evidence that has no probative force, whether objected to or not, cannot be considered: Knudson v. Knudson (1943) 382 Ill. 492. Evidence sufficient to defeat such a motion must be evidence upon which the jury could, without acting unreasonably in the eyes of the law, decide in favor of the plaintiff: American Hat. Bank v. Woolard (1930) 342 Ill. 148; Provenzano v. Illinois Cent. R. Co. (1934) 357 Ill. 192.

A manufacturer, under Illinois law, is not liable in damages to persons with whom it has no contractual relations and is not in privity for personal injuries or property damages sustained by such persons because of the alleged negligent manufacture of a product, except where the product is inherently, normally, and imminently dangerous, and except where, though not inherently, normally, or imminently dangerous, its nature is such that it may become so if negligently manufactured: Rotche v. Buick Motor Co. (1934) 358 Ill. 507. Other cases to the same effect are: Field v. French (1898) 80 Ill. App. 78; Shepard v. Kensington Steel Co. (1931) 262 Ill. App. 117; Alschuler v. Rockford Bolt & Steel Co. (1943) 318 Ill. App. 564; Beadles v. Servel Inc. (1951) 344 Ill. App. 133. Another exception has also been said to be where the manufacturer’s negligence consists of a fraudulent or deceitful statement or misrepresentation: Miller v. Sears, Roebuck & Co. of Illinois (1928) 250 Ill. App. 340. And in those excepted cases where, regardless of the presence or absence of contractual relations or privity, there may possibly be a liability, the mere fact that an accident resulting in an injury to person or property occurs does not authorize a presumption or inference that the manufacturer of the product was negligent; the burden is on the plaintiff to prove by competent evidence, direct or circumstantial, that the manufacturer was negligent in the manufacture of the product: Rotche v. Buick Motor Co., supra; Lindroth v. Walgreen Co., supra.

The parties appear to have tried this case on the basis that Illinois law applies, or that Hlinois law and Wisconsin law in this respect are the same, as apparently is the case: Reed & Barton Corp. v. Maas, 73 F.2d 359 (CCA 1st, 1934), and we shall be governed accordingly.

Neither of the parties have referred us to a case of similar injuries under similar circumstances and we’ve found none in Illinois. Almost any otherwise innocent article may, under some extraordinary circumstances, injure a person, but that does not render the article itself inherently and imminently dangerous; there is scarcely an object in art or nature from which an injury may not occur under some circumstances, but that is not the test as to whether it is inherently and imminently dangerous: Miller v. Sears, Roebuck & Co. of Illinois, supra. The test is, — how dangerous is this product with the particular defect, if any, it is alleged and proven to have in a particular case, — is the product, as defectively made (if so alleged and proven in a particular case) inherently dangerous when put to its intended use: Beadles v. Servel Inc., supra.

Alschuler v. Rockford Bolt & Steel Co., supra, is probably as close to the present case as any we’ve been referred to or found. There the defendant Rockford Bolt & Steel Co. was alleged to have manufactured the disassembled parts of certain scaffold equipment,— metal bases, upright metal supports, metal hooks or brackets, etc., — for one Sloan who was the inventor of this type of scaffold; Sloan allegedly sold the equipment to the Briggs Company; that company sold it to Alschuler; Alschuler was a plastering and lathing contractor for certain buildings; he sublet the lathing work to Nadon, a subcontractor, Alschuler furnishing the scaffold, and Whitman, an employee of Nadon, fell and was injured while working on the scaffold when some of the hooks broke, allegedly because of negligent construction; Alschuler, the contractor, and Nadon, the subcontractor, paid workmen’s compensation on account of the injury and, on a subrogation basis, sued the defendant manufacturer on account of Whitman’s injuries. A motion to strike an amended complaint was sustained, the plaintiffs stood thereon, a judgment was entered for the defendant, and on appeal this was affirmed. The Court commented on Colbert v. Holland Furnace Co. (1928) 333 Ill. 78, Lill v. Murphy Door Bed Co. of Chicago (1937) 290 Ill. App. 328, and Davidson v. Montgomery Ward & Co. (1912) 171 Ill. App. 355 (which are among those cases cited by the plaintiff in the case at bar), thought them not to be in point, and, considering Shepard v. Kensington Steel Co., supra, to be more nearly in point, said, pp. 570, 573:

“The main point relied upon by the appellee, to sustain the ruling of the court on their motion, is that the manufacturer of an article is not liable to a third party who had no contractual relation directly, or indirectly with the manufacturer, unless the article was inherently dangerous to life or property. The appellants admit this to be the usual rule, but they contend there are exceptions to this rule which apply to the present case.

“We think the law, as announced in that case, (referring to Shepard v. Kensington Steel Co.) is very applicable to the facts in the present case. We find that the manufacturer, the Bockford Bolt & Steel Company, who manufactured the alleged defective parts of the scaffold, and the employee of the plaintiff who was injured by using the scaffold, had no privity of contract between them by which a suit for injuries could be maintained. The judgment of the trial court is hereby affirmed.”

The defendant manufacturer of this door or the disassembled parts of this door and the plaintiff employee of A. Dobnick, the installer, had no contractual relations between them and were not in privity with each other. The defendant manufacturer had contractual relations with and was in privity with the Yates American Machine Co. for whom it manufactured and to whom it had sold the door, and with A. Dobnick with and by whom, as an independent contractor, it contracted the door should be assembled and installed. But it had no such relations with this plaintiff. There is no proof here that the product involved, the door, or its disassembled parts, was inherently, normally, or imminently dangerous, or, from anything in evidence here, that its nature was such that it might become so if, in any respect material here, negligently manufactured, and there is no allegation or proof that there was any fraudulent or deceitful statement or misrepresentation by the defendant. Accordingly, there was no duty in the premises by the defendant towards this plaintiff, and, necessarily, there could be, and was, no breach of duty, or negligence: Walters v. Christy (1955) 5 Ill.App.2d 68.

But, assuming that there was a duty by the defendant manufacturer towards this plaintiff, there is no presumption or inference that the defendant was negligent; the burden is on the plaintiff to' prove, by competent evidence, that the defendant was negligent, and there is no evidence the defendant was negligent in the design or manufacture or testing of the door. It was not a new type, but made according to a standardized design or drawing. No defective materials were used in the manufacture of the disassembled parts thereof, and there was no failure by the defendant to follow any reasonable testing or inspecting procedures common in the industry, so far as the evidence here indicates. The door was manufactured in disassembled parts and so sent to the place of installation. There were printed instructions. When fully assembled and installed ready to be used as a door, with its electrical control device, the door apparently was a safe, properly functioning product, — there is no proof to the contrary. The electrical control device could not reasonably be installed until after the door was completely installed. No different general design for a door of this type than the design here involved was in common use in the industry at that time, and this design had not been found to be unsafe, so far as the record here indicates. There is uncontroverted evidence adduced by the plaintiff that probably some 150 doors of like design had been previously manufactued by the defendant, and had been installed, with no incidents of the type here involved having occurred. That is, of course, not conclusive as to the defendant’s alleged negligence, but it is a fact of significance bearing on its exercise of due care. That is the only history of the design, manufacture, and use of the product prior to this incident. The assembling and installation were by an independent contractor, and the defendant had and exercised no control over that. Both that contractor and his employee, the plaintiff, were evidently qualified tradesmen and mechanics and experienced in this type of work. We do not believe that, under the circumstances, the evidence tends to show that the defendant was negligent in the design or manufacture or testing thereof or in not altering its design prior to this incident. The design having evidently been found safe in the industry by experience and having been many times used safely by installers, the state of the art at the time and the prior history of the use of the product would not have indicated or required any material change in the design, or manufacture. That the defendant itself provided no so-called stops, — meaning, presumably, “C” clamps and blocks or block and tackle, — to control or arrest the movements of the incompleted door during assembly and installation thereof by the independent contractor installer, cannot be considered negligence, or, if negligence, cannot be considered the proximate cause of the injuries here, when there is nothing to indicate it was usual or customary for the defendant to do so as a part of its duties, but, on the contrary, that it was evidently usual or customary for the installer to do so, and where the installer did, in fact, do so here, and where even if the defendant had so provided such stops they would, nevertheless, have had to be used and inserted in the track and roller mechanism or otherwise attached by the independent contractor installer who, for some unexplained reason, though they were readily available to him, did not, in fact, do so here at the particular time concerned, and over the details of whose work the defendant had and exercised no control.

There is no evidence to the effect that the door, or its disassembled parts, was, in fact, changed in design or manufacture or repaired after this incident, or that there was, in fact, at the time concerned a safer or better available design commonly in use in the industry, such as a staggered lift chain, but the testimony of the plaintiff’s witness Harold Kelton was, in part, directed generally along those lines, and to that extent should be commented on. It is, of course, well settled that the question of the defendant’s alleged negligence must be determined only by what occurred before and at the time of the incident, under then existing circumstances, and any evidence, if there were any, of alleged changes or repairs made afterwards was not admissible: Howe v. Medaris (1899) 183 Ill. 288; Grubb v. Illinois Terminal Co. (1937) 366 Ill. 330; Schuman v. Bader & Co. (1922) 227 Ill. App. 28. And there was no obligation resting on the defendant manufacturer to adopt every possible new device which might possibly have been conceived or invented, if there were any; it is not of itself negligence to use a particular design or method in the manufacture or handling of a product or doing a job which is reasonably safe and in customary use in the industry, although other possible designs, whether in use in the industry or not, might be conceived which would be safer, and evidence as to what is thought by some to be a safer design or method or product is not admissible: American Malting Co. v. Lelivelt (1902) 101 Ill. App. 320; Bohn v. Standard Laundry Co. (1909) 148 Ill. App. 494; Reddick v. General Chemical Co. (1905) 124 Ill. App. 31; Kennedy v. Chicago & Carterville Coal Co. (1913) 180 Ill. App. 42. The fact that an accident was, conceivably, avoidable, and might, conceivably, have been prevented does not warrant a jury in finding that there was fault or negligence by the defendant in not anticipating and providing against it: Illinois Steel Co. v. Zolnowski (1905) 118 Ill. App. 209, affirmed (1908) 233 Ill. 299. To that extent the testimony of the witness Kelton was incompetent and inadmissible and can be given no consideration.

The principal Illinois cases the plaintiff cites on the merits are: Colbert v. Holland Furnace Co. (1928) 333 Ill. 78; Wintersteen v. National Cooperage & Woodenware Co. (1935) 361 Ill. 95; Davidson v. Montgomery Ward & Co. (1912) 171 Ill. App. 355; Lill v. Murphy Door Bed Co. of Chicago (1937) 290 Ill. App. 328; Carson v. Weston Hotel Corp. (1951) 342 Ill. App. 602; and Brown v. Sterling Abrasives Division of Cleveland Quarries Co. (1955) 5 Ill.App.2d 1. Wintersteen v. National Cooperage & Woodenware Co. is not a case involving any alleged defect in the manufacture or inspecting of some product, but involved only the negligence of a manufacturer in the manner of loading some of its barrels in a railroad car by reason of which the plaintiff, while unloading them, was injured when one fell upon him, and it has no bearing at all on the present case. The other cases are well within the principles of Rotche v. Buick Motor Co., supra, and the cases following it to which we have referred, and relate to products which are not inherently, normally, or imminently dangerous, but the nature of which is such that they may become so if negligently manufactured, or relate to products as to which there has been some false statement or misrepresentation by the manufacturer, and merely involve different applications of those principles to different factual situations. They are entirely consistent in principle with onr views here, but they are inapplicable to the present facts. They all involved some malfunctioning, due to alleged negligence of the manufacturer, of some manufactured item when and after it had been completely installed, presumably ready for its ultimate use, and was being put to the ultimate use for which it was manufactured and intended. None of them involved a situation such as this case of the manufacture of a door in disassembled uninstalled parts and an injury to the assembler or installer thereof while in the process of assembling and installing it and before it is completely installed as a finished door and before it is put to the ultimate use for which, as a finished door, it was manufactured and intended. There also is no proof here of any negligent defective condition or construction or inspection or failure of inspection of this door or its disassembled parts, which rendered it inherently, normally, or imminently dangerous, or any false misrepresentation as to the same.

The principal cases the plaintiff cites from other jurisdictions on the merits are: MacPherson v. Buick Motor Co. (1916) 217 N. Y. 382; Anderson v. Linton, 178 F.2d 304 (CA 7th, 1949); Laclede Steel Co. v. Silas Mason Co., 67 F. Supp. 751 (D. C. W. D. La. 1946); and Reed & Barton Corp. v. Maas, 73 F.2d 359 (CCA 1st, 1934). Those cases also are well within the principles of Rotche v. Buick Motor Co., supra, relating to products which are either inherently, normally, and imminently dangerous, or may become so if negligently manufactured, and merely involved again varying applications of the principles to varying factual situations. They again are entirely consistent in principle with our views, but are inapplicable to the present facts. Again, none of them involved the manufacture of a product in disassembled uninstalled parts and an injury to the installer while in the process of installation and before the product is complete as a finished product and is put to its ultimate use for which, as a finished product, it was manufactured and intended. This door, or its disassembled parts, was not inherently dangerous, and this is not a case where due to negligence of the manufacturer the door, or its disassembled parts, has become an article fraught with danger and where it is probable that injury would result from its proper use in the manner in which it was intended for use.

Further, we believe the plaintiff was guilty of contributory negligence as a matter of law. The question of due care on the part of the plaintiff is ordinarily one of fact for the jury, but when the facts bearing thereon rest solely upon his own testimony, and the attendant circumstances that are not in dispute, the Court then has the duty of determining, as a matter of law, whether he, in fact, used ordinary caution for his own safety: Pollard v. Broadway Cent. Hotel Corp. (1933) 269 Ill. App. 77. Where a plaintiff is thoroughly familiar with a possible hazard involved in the performance of his job and with the means to avoid such, the fact that at a particular time he may have been momentarily unmindful thereof, forgetful thereof, or have overlooked the same does not absolve him from the duty of observing due care for his own safety: Munsen v. Illinois Northern Utilities Co. (1930) 258 Ill. App. 438. If a plaintiff has available to him two different methods or ways of doing a job, performing a task, or proceeding, — one previously tried and known to be safe, — the other either unknown and unexplored or known to involve certain possible hazards, ■ — and he chooses the method or way which is unknown and unexplored or known to involve cértain possible hazards, and is injured in the process, he is contributorily negligent as a matter of law: Geraghty v. Burr Oak Lanes Inc. (1954) 2 Ill.App.2d 48.

The plaintiff here was a licensed and experienced mechanic. He was not a novice, or a mere passerby. He had been trained on the job. He had previously installed or helped install many other similar doors, though not one of this particular type. He knew the electrical operating device had not yet been installed and that any control over the movements of the incompleted door had to be done manually or mechanically. During assembly and installation it had to be manually raised and lowered several times by block and tackle to insert the several sections and attach the several counterbalancing weights. He was aware that if at some point in the process the installer temporarily overbalanced the door with weights so it was weight heavy and door light it necessarily would rise unless some steps had been taken to prevent such, and that just before this incident occurred Dobnick was preparing to put on the last weight, and that it would have been common sense to have anchored the incompleted door. He knew it was open, up, just before the incident occurred, and he was working directly under it. He was fully aware, just as his witness Harold Kelton testified, that the movements of the door up or down during assembly and installation could be effectively arrested and controlled by a “C” clamp and a block (and, for that matter, also by the block and tackle),- — standard, ordinary, simple installation tools and equipment, which devices had, in fact, been used on this very job during parts of the installation, but which devices, for some unexplained reason, were not in use at the particular time this incident occurred. If at the time this happened the plaintiff was momentarily unmindful of, or forgetful of, or overlooked the possible hazard of the incompleted door, temporarily uncontrolled by a “C” clamp and block (or block and tackle), and temporarily weight heavy and door light because of the attachment of the counterbalancing weight, rising and then falling on him as he worked directly under it, that does not absolve him from the duty to observe due care for his own safety. Having available to him a method or way of doing the job, previously tried and known to be safe, by controlling the movements of the incompleted door during installation by a simple “C” clamp and block (or block and tackle), and having, nevertheless, perhaps from sheer momentary forgetfulness or oversight, chosen at the moment not to follow that method or way, but another way known to involve those possible hazards, he was, we believe, contributorily negligent as a matter of law.

The competent evidence here was not such that the jury could, without acting unreasonably, have decided in favor of the plaintiff, and, hence, the motion for judgment notwithstanding the verdict was correctly allowed and the judgment will be affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DOVE

license: Public Domain

text:
    Lila Hallett, Plaintiff-Appellant, v. J. Edward Hallett, Defendant-Appellee.
    Gen. No. 10,936.
    Second District.
    June 18, 1956.
    Released for publication July 5, 1956.

      Large, Reno & Zahm, of Rockford, for appellant; H. Emmett Folgate, of Rockford, of counsel.
    Andrews, Essington & Peterson, of Rockford, for appellee; William W. Peterson, of Rockford, of counsel.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

On December 17, 1946, the Circuit Court of Winnebago county granted a decree of divorce to appellant and awarded to her the custody of the two boys of the parties then aged four and one and one-half years, respectively. The cause was based upon the complaint and answer, and the decree provided that the parties retain their ownership of the residence property at 1806 North Court street in Rockford, but that plaintiff should have the right to the sole occupancy thereof and obligated her to pay the taxes and insurance thereon and keep it in a reasonable state of repair.

The decree further ordered the husband to “pay to the plaintiff for her support and for support of said children the sum of $60.00 on December 2, 1946, and a like sum on December 16, 1946, and a like sum on the 2nd and 16th days respectively of each and every month hereafter until further order of the court. Said payments shall be apportioned 1/3 for the support of the plaintiff and 1/3 for the support of each of said children until the further order of the court.”

The record discloses that on November 9, 1950, appellant filed in the Superior Court of Los Angeles county, California, her verified complaint against the defendant alleging, among other things, that they were both residents of Los Angeles, California; that they were married on August 23, 1933, in Illinois; that two children were born as a result of said marriage, the children then being eight and five years of age respectively; that thereafter the parties were divorced on December 17,1946, by the provisions of a decree of the Circuit Court of Winnebago county, Illinois. The complaint set forth haec verba this decree and averred that at the time of its rendition both parties were residents of Winnebago county, Illinois; that the defendant was duly personally served with process and that both parties were subject to the jurisdiction of the Winnebago County Circuit Court. It was further averred that said decree was a final decree and in full force and effect, not subject to modification as to accrued installments and that no appeal had been taken therefrom.

The California complaint further alleged that after the rendition of the divorce decree in Illinois both parties thereto came to the State of California; that up to July 3, 1950, plaintiff had the legal physical care, custody, and control of the minor children; that on that day, due to the illness of her father, who then lived in Illinois, it became necessary for her to return to Illinois and she did so, leaving the minor children with the defendant who verbally agreed to care for them during appellant’s absence and return them to her upon her return from Illinois to California. Her complaint then alleged that she returned to California on September 29,1950, and immediately requested appellee to permit her to have the children, which request appellee refused. Her complaint further alleged that the Hlinois decree was entitled to full faith and credit and should “be established herein as a foreign judgment”; that there was due her under the Hlinois decree the sum of $60 on August 16, 1950, and a like sum on the 2nd and 16th days of each succeeding calendar month, aggregating $300 at the time her complaint was filed.

The prayer of this complaint was that defendant “be enjoined and restrained from interfering with her care, custody or control of the minor children of the parties and from keeping said children from her and refusing to let her have said children and from instructing the school authorities to refuse to let plaintiff have said children; for judgment in the amount of $300.00 together with interest thereon at the rate prescribed by law; that judgment in Case No. 54581 in the Circuit Court of Winnebago County, State of Illinois, be established herein as a foreign judgment; for her reasonable attorney fees and costs herein incurred and for such other and further relief as to the court may seem meet.”

The record further discloses that upon the filing of this complaint a summons for the defendant was issued and also the Superior Court issued a citation directing the defendant to appear and show cause November 14, 1950. Thereafter the following order, dated December 5, 1950, was entered by the presiding judge of the Superior Court where this action was pending, viz.: “Plaintiff’s order to show cause re attorney fees, costs, alimony pendente lite, support and custody of children and restraining order comes on for hearing; plaintiff present with her counsel, Lawrence Paul Scherb and Grover Bossert by Lawrence Paul Scherb, and the defendant with his counsel, William E. MacFadden. Order to show cause is referred to Commissioner Brock for findings of fact. Plaintiff and defendant are sworn and testify. Defendant’s exhibit a (letter) is admitted and filed. The court makes the following order: Custody of the minor children is awarded to the plaintiff, effective December 15, 1950, subject to defendant’s right of reasonable visitation, which shall include defendant’s right to take both minor children alternate week ends, commencing December 29, 1950, from 6:00 P. M. Friday to 6:00 P. M. Sunday. Both parties are restrained from removing the minor children, or either of them, from the state of California without a prior order of court. Defendant is ordered to pay to plaintiff $40.00 per month for the support of each child, making a total of $80.00 per month payable one-half on the 16th and 2nd days of each month hereafter, commencing December 16, 1950. Defendant is ordered to provide or pay for reasonable necessary surgical and hospital care for the minor children. The inclusion of such children in his present policy of insurance with Pacific Mutual shall constitute a compliance with this portion of the order. Defendant is ordered to pay direct to plaintiff’s counsel $150.00 on account of attorney fees, payable $15.00 on the 2nd day of each month hereafter, commencing January 2,1951, and continuing until paid in full. It is stipulated that further attorney fees and costs, if any, may be fixed at time of trial. Notice waived under section 259a COP.”

Thereafter on July 5, 1951, an order was entered by the California court, pursuant to the stipulation of the parties, eliminating the provision of the order entered December 11, 1950, restraining both parties from removing the minor children from California and in lieu thereof granting appellant the right to take the children to Illinois and also granting appellee the right to have the children one month each summer if he furnished the necessary care and defrayed the cost of transportation. No further hearing was ever had in California, and on November 3, 1955, the attorney for appellant requested the California court to dismiss appellant’s complaint, and on November 7, 1955, an order to that effect was entered by that court.

On July 8, 1955, appellant filed the instant petition in the Circuit Court of Winnebago county, Illinois, which, after reciting the rendition of the decree on December 17, 1946, and its provisions, alleged that defendant paid the amounts as directed by said decree until August 1,1950; that since that date defendant has paid only the sum of $40 on the 2nd and 16th days of the month and that by reason thereof defendant is in default in the sum of $2340. The prayer of the petition was for an order impressing a lien on the undivided one-half interest of the defendant in the residence property to secure the payment of said $2340 and for a lien to be impressed upon said interest of the defendant in said property to secure future payments of alimony and child support.

In his answer to the petition, defendant admitted that since August 1, 1950, he had paid only $40 on the 2nd and 16th days of each month but denied he was in default in any amount of money. As an affirmative defense he averred that he and respondent are both residents of the State of California and that in the year 1949 petitioner quit her occupancy of the residence property in Rockford and rented the same and moved to California and has received all rents from the Illinois property since that time. He further set forth the proceedings had in the Superior Court of Los Angeles county, California, including the order of that court which was entered on December 15, 1950, which awarded appellant the custody of the children and ordering respondent to pay $40 per month for each child, which order respondent avers that he has.complied with.

Respondent also filed with his answer a cross-petition which, after re-alleging the matters set forth in his answer and affirmative defense, averred that petitioner had been gainfully employed for the past five years in California and prayed that the original decree of divorce be modified and the alimony award reduced. No reply was filed to the counter-claim, and the issues made by the pleadings were submitted to the chancellor who found that the order of the California court superseded the original decree of the Illinois court and is res adjudicata on the issues of alimony, custody and child support; that by accepting the benefits derived from the order of the California court for a period of almost five years, petitioner abandoned the provisions of the original Illinois decree. The court denied the prayer of the petition, dismissed it at petitioner’s cost, and the record is before this court for review upon the appeal of Lila Hallett.

Counsel for both parties agree that under the authorities of this state the party for whose benefit an alimony order has been entered has a vested right thereto and past due installments of alimony cannot be modified by any subsequent order of the court which originally entered the order. (Stewart v. Stewart, 1 Ill.App.2d 283, 117 N.E.2d 579; Bush v. Bush, 316 Ill. App. 295, 44 N.E.2d 767; Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505; Banck v. Banck, 322 Ill. App. 369, 54 N.E.2d 577; Shuff v. Fulte, 344 Ill. App. 157; Adler v. Adler, 373 Ill. 361.)

Counsel for both parties state that the only question presented by this record is whether appellant, by her conduct, is estopped from asserting her right to recover a money judgment against appellee for the past due installments awarded her under the provisions of the original Illinois decree. Counsel for appellee insists that this record discloses that appellant abandoned the benefits accorded her by the original decree and is now estopped from obtaining any advantage thereunder. Counsel state that they have been unable to find any cases directly in point but call our attention to Wolfe v. Wolfe, 303 Ill. App. 188, 24 N.E.2d 871, where the court refused to hold defendant in contempt of its decree which ordered defendant to pay $15 per week for child support when it appeared that the petitioner had orally agreed to accept $12.50 per week. In that case the court stated that where it appeared that petitioner had accepted the reduced amount for five years without protest, it would be unjust to hold the husband in contempt. In the instant case, appellant for almost five years accepted a smaller sum than that granted her by the Illinois decree, and it is argued that she was satisfied with the reduced sum because from the date the California court entered its order on December 11, 1950, until November 3, 1955, no further steps were taken by her in the California courts in connection with her complaint except on July 1, 1951, the California court approved a stipulation of the parties and modified the order of December 11, 1950, by permitting appellant to take the children to Illinois. In the instant case, however, there is no suggestion made or evidence offered to the effect that appellant ever agreed to take a lesser sum than that provided by the Illinois decree, and it does not follow that because she accepted the lesser sum she abandoned the provisions made for her by the final decree of the Illinois court.

No answer to appellant’s complaint was ever filed by appellee in the Superior Court of Los Angeles County, California, and there was never a final hearing had. In the instant case, the chancellor found in his final order dismissing the petition that by filing her complaint in the California court and accepting the money the court directed to be paid to her, appellant abandoned the Illinois decree and is now estopped from insisting upon appellee complying with its provisions. In the several orders entered by the California court no mention is made of the Illinois decree or its provisions. Upon filing the verified complaint in the California court, an order was entered requiring appellee to appear and show cause, pending the trial of the action (1) why he should not be restrained from interfering with plaintiff’s custody of the children; (2) why the custody of the children, during the pendency of the cause, should not be awarded the plaintiff; and (3) why appellee should not be requested to pay plaintiff a reasonable sum for attorney fees and for her support and the maintenance of the minor children during the pend-ency of this action. When defendant appeared in the California court in response to this citation, a temporary order was entered and that order provided: (1) that the order to show cause be referred to a Commissioner for findings of fact; (2) that the custody of the children be awarded the plaintiff effective December 15,1950; (3) that the defendant have the right to visit the children; (4) that both parties be restrained from removing either child from the State of California; (5) that defendant pay $40 per month for the support of each child; (6) that defendant provide or pay surgical and hospital care for the children; and (7) that defendant pay plaintiff’s attorney fees.

This order in no way purported to supersede, annul, or abrogate any of the provisions of the Illinois decree. It made no reference to it. It was entered pending the trial of the action, granting custody of the children to the plaintiff and providing for their support during the pendency of the case in the California court.

The record discloses that on October 3, 1955, the chancellor in the instant cause filed a memorandum of decision concluding with the statement that “whatever decree was entered between the parties in the State of California must be the decree that governs the parties from the date of its entry” and entered an order that this cause was heard upon the petition, answer and cross-petition and that judgment is rendered in favor of the respondent and defendant J. Edward Hallett and the chancellor suggested that a formal order be prepared dismissing the petition. On October 27, 1955, such an order was approved by the court which ordered, adjudged and decreed that plaintiff’s petition be dismissed and that plaintiff pay the cost of this proceeding. Thereafter and on November 25, 1955, an order was entered withdrawing the cross-petition of the defendant for reduction of alimony and, as a part of this same order, the judgment theretofore rendered was vacated for the purpose of introducing further evidence on behalf of the plaintiff, and after that recital the order of November 25, 1955, concluded: “And it is further ordered by the court that order of judgment heretofore filed in this cause on October 27, 1955, be and the same is hereby re-entered as of this day.” The decree or order, however, which the court entered on November 25, 1955, omitted the finding that was contained in the order of October 27, 1955, to the effect that the order of the Superior Court of California is res adjudicata on the issues of alimony, custody and child support and omits the finding that the order of the California court supersedes the original decree of this court in the matter of child support, custody and alimony. This decree of November 25, 1955, in addition to dismissing the petition at plaintiff’s costs, decrees that the children remain in the custody of the plaintiff; that the child support payments remain the same as previously decreed by the Illinois court; that no further alimony is to be paid by the defendant to the plaintiff, and decrees that there is no sum due and owing from the defendant for alimony past due. It is this decree of November 25, 1955, which is before us for review.

Counsel for both parties call our attention to Tomkins v. Tomkins, 89 Cal.App.2d 243, 200 P.2d 821. It appeared in that case that on May 8,1936, the Superior Court of Cook county, Illinois, entered a decree granting Margaret Tomkins a divorce from her husband, Raymond M. Tomkins, on the ground of desertion. The decree found that of the marriage there were two boys aged nineteen and fifteen, respectively, at the time the decree was entered. The custody of these children was awarded the mother, and the decree found that she was entitled to alimony and support for the minor children and ordered the father to pay the mother as and for her alimony and support of the minor children the sum of $25 per week to continue during the minority of the children or until the further order of the court. When the youngest son attained his majority, the father ceased making the payments provided by the decree and thereafter, upon the petition of Mrs. Tomkins and an answer thereto by Mr. Tomkins, a further hearing was had in the Superior Court of Cook county resulting in an order finding that the children had attained their majority and, therefore, the husband was entitled to have the payments as provided in the original decree reduced from $25 per week to $75 per month and directed the defendant to pay that amount to his wife “as and for her permanent alimony” retroactive as and of January 25, 1942. The defendant complied with this order, which was entered on June 17,1942, and paid his wife the amount as directed from June 17,1942, until January 10,1944.

Thereafter, in the Superior Court of Los Angeles county, California, Mrs. Tomkins filed her complaint for the purpose of establishing this order of the Superior Court of Cook county entered June 17, 1942, as a judgment of the Superior Court of Los Angeles county, California, and asking for a money judgment against defendant for alimony which accrued after January 10, 1944. The trial court awarded such a judgment, and the husband appealed.

The District Court of Appeal, in reversing this judgment, cited the provision of our statute to the effect that a party shall not be entitled to alimony after remarriage (Ill. Rev. Stat. 1941, chap. 40, sec. 19) and held that because it was not alleged in the complaint, nor proved by the evidence, or found by the court that plaintiff had not remarried after the order of June 17, 1942, was entered, that order was ineffective; that the fact that plaintiff had not remarried was a prerequisite to her right to recover, and that an averment to that effect in her complaint is essential to the statement of a cause of action.

The California court then went on to state that the husband appeared in the Superior Court of Cook county, Illinois, and answered the petition of his wife to show cause and contended that the payments required by the original decree ceased upon the youngest child attaining majority, and he then challenged the jurisdiction of the Cook county court to make the order. The California court then held that the order entered June 17, 1942, was res judicata as to the purpose, meaning, and effect of the decree of May 8, 1936, stating that the construction of the decree and the jurisdiction of the court to enter it having been litigated before the Illinois court, appellant was precluded from again litigating those questions. “Where the purpose, meaning and effect of a former decree,” said the court, “has been adjudicated in another action or in a subsequent proceeding in the same action, the second adjudication is conclusive of the purpose, meaning and effect of the first unless it is itself void on its face for lack of jurisdiction.” The court further said: “A decree of divorce of a sister state can be established in California and when so established it has the same legal effect as a local decree of divorce including requirement to make future installments of alimony together with power to enforce provisions thereof by contempt proceedings,” citing Biewend v. Biewend, 17 Cal.2d 108, 113, 109 P.2d 701, 132 A. L. R. 1264, where it is said: “ ‘An order for the payment of money as alimony rendered by a court of competent jurisdiction in one state must be recognized by all other states under the full faith and credit clause of the United States Constitution as to all accrued installments not subject to modification by the court rendering the original order.’ . . . All instalments sought to be recovered in the present action had accrued before the commencement of the action and they were not subject to modification by the Illinois court. Respondent had a vested right to them enforceable in this state under the full faith and credit clause. U. S. Const, art. 4, § 1. Banck v. Banck, 322 Ill. App. 369, 54 N.E.2d 577, 584.”

So, in the instant case, appellant had a right to have the decree rendered by the Winnebago County Circuit Court established by decree in California and for that purpose filed her complaint in the California court, and had she done so it would have had the same legal effect as a California decree of divorce including the requirement on the part of appellee here to make future installments of alimony, together with the power to enforce the provisions thereof.

That is not, however, what appellant did. She filed her complaint, and a temporary order was made by the California court, but that order did not purport to establish the Illinois decree as a local decree of the California court. It did direct the husband to surrender the custody of the children to the plaintiff, ordered him to pay $300 and other fees and a further sum for the support of the children, but was silent as to alimony and as to the disposition of the real estate of the parties, and was a temporary order only and entirely independent of and in no way related to the provisions óf the original Ulinois decree. No hearing was ever had on the merits of the case; in fact, no answer to the complaint was ever filed and no final order or judgment ever entered until the complaint was dismissed on November 7, 1955. The Tomkins case is not authority for the proposition that simply because appellee paid and appellant accepted child support in accordance with the temporary order of the California court, appellant is now estopped or precluded from asserting her right to past due installments of alimony as provided by the Illinois decree.

In Sutton v. Leib, 199 F.2d 163, a former wife brought an action against her former husband to recover accrued payments of alimony under a decree of divorce entered by an Illinois court in 1939. The decree provided for the payment of $125 alimony monthly “for as long as the plaintiff shall remain unmarried or for so long as this decree remains in full force and effect.” On July 3, 1944, the wife married one Walter Henzel who, that day, had procured a decree of divorce from his wife, Dorothy Henzel, at Reno, Nevada. A month later a New York court entered a decree of separate maintenance in a proceeding brought by Dorothy Henzel, a resident óf New York, against Walter Henzel, and that decree found that the divorce decree entered by the Nevada court on July 3,1944, was null and void. In September 1949, a New York court entered a decree, upon the complaint of the instant plaintiff, declaring her marriage to Walter Henzel null and void because he had a wife living at the time Henzel and the instant plaintiff were married. In November 1947, the plaintiff was married again. In the instant proceeding, filed in April 1950, plaintiff sought to recover from her first husband forty monthly installments of alimony which accrued to her between the first of the month following her marriage to Henzel in July 1944, and the first of the month following her third marriage in November 1947. Under these facts it was held that even though the plaintiff had lived with Henzel as his wife and received from him some gratuitous support, which he was under no legal duty to render, and notwithstanding the fact that the defendant had every reason to believe that his obligation had come to an end under the terms of the decree which imposed it, and notwithstanding the further fact that the attorney for the plaintiff had written the defendant that the plaintiff’s alimony claim was satisfied in full, and notwithstanding the decisions of the Federal District Court and the Circuit Court of Appeals that the defendant was not liable, and notwithstanding the fact that no demand was ever made by the plaintiff for the alimony installments accruing between August 1944, and December 1947, until the filing of the instant suit in April 1950, plaintiff was not estopped or prevented from recovering the alimony payments provided by her original divorce decree.

While the facts in Sutton v. Leib, 199 F.2d 163, supra, are not analogous to the facts in the instant case, that decision does recognize the vested character of the alimony provisions in a divorce decree and illustrates the binding character of those provisions upon the defendant. If the facts disclosed by the record in that case did not prevent the plaintiff from recovering past due installments of alimony, we do not believe the mere fact that the plaintiff here received a smaller amount than that provided by the original Illinois decree could be said to estop her from insisting upon a full compliance by the defendant with the provisions of the original Illinois decree.

The record in this case consists of seventy-three pages. The abstract covers fourteen pages. In thirteen lines on pages 12 and 13 of the printed abstract, counsel indexed but did not abstract twenty-four pages of the record, and the instruments so indexed were the transcripts of the proceedings in the Superior Court of Los Angeles county, California. The abstract is woefully deficient, necessitating repeated preferences to the record and was not prepared in accordance with recognized rules of practice.

It is not suggested by counsel or argued that the order of November 25,1955, is erroneous in any respect other than its finding that there is no sum due from appellee to appellant for past due alimony. In our opinion, it is erroneous in that respect. The decree of the Circuit Court of Winnebago County will, therefore, be affirmed except as to that part which finds that there is no sum due appellant for past due alimony. That portion of the decree is reversed, and the cause is remanded with directions to enter a decree not inconsistent with this opinion.

Decree reversed in part, affirmed in part, and cause remanded with directions.

CROW and EOVALDI, JJ., concur.


author: JUSTICE EOYAUDI.

text:
    David Jacobson, a Minor, by Florence M. Jacobson, his Mother and Next Friend, and Florence M. Jacobson, Appellants, v. Central Illinois Electric & Gas Company, Appellee.
    Gen. No. 10,935. (Abstract of Decision.)
    Second District.
    June 23, 1956.
    Released for publication July 11, 1956.

      Russell J. Goldman, for appellants; Harold Stern, of counsel; Hyer, Gill & Brown for defendantappellee; Robert C. Gill, of counsel.
   Opinion by

JUSTICE EOYAUDI.

Not to be published in full.


text:
    May Danhof, Plaintiff-Appellee, v. Harriet E. Osborne, d/b/a Duffy’s Tavern, Defendant-Appellant, Henry A. Buttell d/b/a Hank’s Tavern, Co-Defendant-Appellant.
    Gen. No. 10,901.
    Second District.
    June 7, 1956.
    Rehearing denied July 16, 1956.
    Released for publication July 17, 1956.

      Bozeman, Moran & Klockau, of Moline, and Frank G. Schubert, of Springfield, for appellant; Bernard J. Moran, and Hubbard B. Neighbour, both of Moline, and Frank G. Schubert, of Springfield, of counsel.
    Edward Zukosky, of Wenona, for appellee.
   JUSTICE CROW

delivered the opinion of the court.

This is a suit under the Dram Shop Act, ch. 43, Ill. Rev. Stats. 1953, par. 135, for loss of means of support by May Danhof, wife of Cornelius P. Danhof, sometimes known as “Pelie” Danhof, against the defendants as owners and proprietors of two taverns in which she alleges her husband was sold or given alcoholic liquor and thereby became intoxicated. The action is for alleged injury in her means of support resulting “in consequence- of the intoxication” of her husband. The jury returned a verdict for the plaintiff of $10,000. Judgment was entered thereon. The defendants appeal, after denial by the trial court of their motions for judgment notwithstanding the verdict, and for a new trial. During the course of the trial motions by the defendants for directed verdicts at the close of the plaintiff’s evidence and at the close of all the evidence had also been denied. Four instructions were given for the plaintiff; thirty-one instructions were given for the two defendants; and no instructions tendered by the defendants were refused. On this appeal no questions are raised on the pleadings, the admission or exclusion of any evidence, or the instructions.

The amended complaint, in substance, alleged, so far as now material, that the defendants sold or gave alcoholic beverages to Danhof and three other patrons and caused their intoxication; that Danhof and those patrons, as a direct and proximate result thereof, engaged in a fight, scuffle, or drunken brawl with one Harold Morris; and that as a direct and proximate result thereof Danhof suffered certain personal injuries and has now become totally and permanently disabled. The defendants’ answers, so far as now material, denied such allegations.

It is the theory of the defendants that (1) their motions for judgment notwithstanding the verdict should have been allowed because, as a matter of law, the alleged injuries of Danhof and the consequent injury to the plaintiff wife in her means of support were caused by the independent, intervening, wilful, and wanton act of a third party, Harold Morris, the sole cause of the beating Danhof received was an affair he’d had with Vernetta Morris, wife of Harold, the injuries were not in any way related to the alleged intoxication of Danhof, were not a proximate result of any such intoxication, and hence were not in consequence of the intoxication within the meaning of the Dram Shop Act, and because, as a matter of law, the plaintiff wife was an active and willing agent in procuring her husband’s injuries, thereby contributing to her own damages, and that she is not an innocent suitor under the Act; and (2) their motions, in the alternative, for a new trial should have been allowed because the verdict is contrary to the manifest weight of the evidence.

Although there are some conflicts in the evidence, which we shall endeavor to note and observe, it substantially appears therefrom that: May Danhof, the plaintiff, 48 years old, is the wife of Cornelius P. Danhof, and on February 24, 1954 (the date of the alleged injury), and prior thereto, Danhof was employed by the City of Lacón, as Chief of Police and maintenance man; his salary was $255 per month, and he contributed something like $200 per month for the support of his wife. Sometime prior to this date and for mpre than eleven months, he was acquainted with one Harold Morris and Vernetta Morris, his wife, 33 years old, also of Lacón. Mr. and Mrs. Danhof and Mr. and Mrs. Morris had been friends for some years. Danhof, for more than a year prior to the occasion in question, had carried on an affair with Vernetta Morris and had frequently engaged in sexual relations with her. May Danhof, the plaintiff, knew of the affair between her husband and Vernetta Morris and had protested incessantly to him about it. Two days prior to February 24, 1954, the plaintiff had filed a Notice of Intention to obtain a divorce from Danhof in the Circuit Court of Marshall county; and on February 24th, she had put Danhof’s clothes out on the porch of their home and had told him that after that day he’d have to get out. Harold Morris was living with his wife, Vernetta, and three children; he had had some reason to believe an affair was going on between his wife and Danhof; he had warned Danhof on a prior occasion to stay away from her or else something would happen, though he’d never threatened bodily harm to Danhof; and, strangely, Danhof and Morris apparently continued their friendly relations even after Morris’ knowledge of Vernetta’s and Danhof’s conduct. Morris had assisted Danhof in his duties with the City of Lacón, and had borrowed money from Danhof after he had information about the affair. He had previously seen his wife with Danhof at “the tavern,” though what tavern he did not say, and he admitted that he was unable to control her. Morris was 5' 5" tall, weighed 125 lbs., and was 34 years old; Danhof was 5' 7" tall, weighed 195 lbs., and was 51 years old. May Danhof had one artificial leg and the other leg bothered her at times. She had on one prior occasion taken Vernetta out in the country, beat up on her, and tried to explain to Vernetta what she was doing to the Danhof home and children.

On February 24,1954, May Danhof, while driving in Lacón, saw her husband at Duffy’s Tavern, operated by one of the defendants, between 5:30 and 6:00 in the evening, in company with Vernetta and certain other persons. After so seeing her husband, she had dinner, and thereafter drove by the Morris house about 7:00 p. m., talked to Harold Morris, and told him Danhof and Vernetta were going out together. Morris went to “the tavern,” evidently Duffy’s, to see if Danhof and Vernetta were still there, and, not finding them, he came home. Later that evening the plaintiff went back to the Morris home; Morris suggested they might be in Chillicothe; it was both his and Mrs. Danhof’s idea to go looking for Vernetta and Danhof; Mrs. Danhof had never gone looking for Danhof before; at his request she took Morris and Morris’ 4-year-old daughter in her car to Chillicothe, — Morris said he was looking for Vernetta to bring her home, — he was not sure who she was with, — and they drove up to and stopped at Hank’s Tavern, operated by the other defendant, at about 8:00 p. m.

As she drove up to the tavern, Danhof, her husband, and Vernetta Morris were in or were just preparing to get into Danhof’s car. Morris jumped out of May Danhof’s car before it fully stopped, she remaining in the car, and immediately ran toward his wife, saying: “I have caught up with you.” He was very angry. Vernetta had stepped out of Danhof’s car in the meantime. Before Morris caught up with Vernetta, Danhof got out of his car, tried to stop Morris, but could not, and said to Morris, in substance: “Let’s talk it over — I was just going to take her home.” Morris answered, in substance — “You have explained to me for the last time you . . . ,” cursing him. Then Morris hit Danhof, but did not knock him down. Danhof stood, dazed, started to go, staggered a few steps, or stumbled, or tripped, and finally fell, hit his head on the side of the building, and went-down. Vernetta and her sister, Mrs. Niles, say the plaintiff was out of her car and was urging Morris to strike Danhof, but the plaintiff denied that, and said she continued to remain in her car during the altercation. Danhof said the plaintiff made no statement of any kind, so far as he heard, the plaintiff says she said nothing, and Vernetta’s and Mrs. Niles’ testimony is the only evidence to the effect the plaintiff urged Morris to strike Danhof. Danhof says that he tried to throw up his hands when Morris started to" strike him, hut he could not defend himself because he was too intoxicated. After Morris hit Danhof he again went after his wife, dragged her over to May Danhof’s car, and tried to put her into it, but she escaped. Morris then hit one Martin, who, meanwhile, had come out of the tavern, with á rock and knocked him down twice. Then he returned to Danhof, who was lying near the corner of the building, and kicked him in the head and cursed him.

May Danhof then, with Morris, drove away in her car. She did not try to determine Danhof’s condition at the moment, but drove around the block and on returning in about 5 minutes saw him sitting up, took the keys out of his car, and she then returned to Lacón. She testified on cross-examination “I never saw anyone so mad and so little to do so much as he did. In a space of five minutes, he knocked Floyd Martin down twice, drug his wife by the hair of her head to my car, and hit Pelie twice in the face.” She also testified in a deposition as to the conduct of Morris after leaving the scene of the incident with her in her car to return to Lacón, — “He was real excited, and he was still mad, and he said he wished he had beat him up sooner. He wished he had listened to me sooner.” She reported the incident to the Mayor of Lacón, Danhof’s employer, and later went with the Mayor and his wife to see Danhof that evening at the hospital in Peoria and stayed until early morning. The occasion of February 24th was the first time either Morris or May Danhof had found Danhof and Vernetta together.

Dr. Frank Green examined Danhof between 8:00 and 10:00 p. m. that evening and determined that he should be hospitalized. He was conscious, but unable to talk or move his right arm and leg. His face was badly cut. He was suffering from a cerebral concussion, though he had no fractured skull. He was paralyzed on the right side. His injuries are permanent.

The plaintiff and Morris testified that Danhof was drunk at the time, and so did Danhof, though some other witnesses said he was not intoxicated, the other witnesses who so testified being Vernetta’s sister, Mrs. Niles, the man, Floyd Martin, whom she was with, Vernetta (all of whom had been with or around Danhof during the late afternoon and early evening, and all of whom had been doing some drinking themselves), the bartender at one of the defendants’ taverns, and another patron at Hank’s Tavern. Danhof testified that he drank 20 beers and 5 glasses of whisky at Duffy’s Tavern that afternoon and evening between 3 to 4:30 p. m. and 5 to 6 p. m.; Vernetta, her sister, Mrs. Niles, and Floyd Martin were there; others said he had less to drink, but there is no dispute but that he was served some alcoholic liquor; Vernetta had left Duffy’s Tavern about 5:30 p. m., had gone home, and had prepared dinner for her husband and children; Danhof evidently left Duffy’s Tavern later, picked up Vernetta, who had told her husband she was going out to make some arrangements about attending someone’s funeral, and, with her, he arrived at Hank’s Tavern at about 7:30 in the evening; Vernetta’s sister, Mrs. Niles, a young daughter of Mrs. Niles, and Floyd Martin accompanied Danhof and Vernetta, in another car, to Hank’s Tavern; and Danhof said he drank 6 junior beers at Hank’s Tavern. Others, however, again said he had less than that to drink at Hank’s but, here also, there is no dispute but that he had there been served some alcoholic liquor.

Danhof and Vernetta generally met in “a tavern” during the period they had been running around together. Danhof and Vernetta had been together, with Mrs. Niles and Martin, at Hank’s Tavern, at least, on other prior occasions. Floyd Martin, who had been with Mrs. Niles, Vernetta’s sister, and in the company of Danhof and Vernetta, in Duffy’s and Hank’s Taverns, was employed as a part time bartender at Duffy’s. The fact that Danhof and Yernetta were seeing each other had been mentioned to the proprietor of Duffy’s, though she said she did not believe it. Danhof was also known by the proprietor of Hank’s Tavern; he had been there before; and the bartender at Hank’s knew Danhof, Yernetta, Mrs. Niles, and Martin.

The first real issues seem to be whether the injury to the plaintiff in her means of support was “in consequence of the intoxication,” i. e., whether Danhof’s intoxication was a proximate cause of his being hurt and disabled and the plaintiff being so injured in her means of support: Whiteside v. O’Connors (1911) 162 Ill. App. 108; Hill v. Alexander (1944) 321 Ill. App. 406. Where the action is for an injury allegedly resulting “in consequence of the intoxication” of any person, the intoxication must be a proximate cause of the injury; the defendant need not, however, have foreseen the precise injury which results; also, the intoxication need not be the sole cause, or the last or nearest cause; it is sufficient as a proximate cause if it concurs with some other cause acting at the same time, which in combination with it causes the injury; but the injury must be a natural and probable consequence of the intoxication and be of such a character as an ordinarily prudent person ought to foresee might probably occur as a result of the intoxication: Whiteside v. O’Connors, supra; Economy Auto Ins. Co. v. Brown (1948) 334 Ill. App. 579. It is not the intention of the Dram Shop Act that the liquor alone, of itself, exclusive of other agency, should do the whole injury: Schroder v. Crawford (1880) 94 Ill. 357.

The question presented by the defendants’ motions for judgment notwithstanding the verdict, therefore, is the rather narrow one of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorably to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support “in consequence of the intoxication” of her husband Danhof, as a proximate result of his intoxication. On such motions we are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts; a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence; and if there be a competent evidentiary basis for their verdict the jury may disregard or disbelieve alleged facts inconsistent with their conclusion. Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. (1950) 407 Ill. 121; the principles applicable on such a motion are the same as on a motion for a directed verdict, and are well settled: Neering v. Illinois Cent. R. Co. (1943) 383 Ill. 366; Blumb v. Getz (1937) 366 Ill. 273.

What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the evidence and attending circumstances, — it can arise as a question of law only when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts; if it could have been foreseen by the exercise of ordinary care that some injury might or would result from an act, that act is a proximate cause of the injury: Phillabaum v. Lake Erie & W. R. Co. (1924) 315 Ill. 131. An intervening, efficient cause is a new and independent force, the intervention of which was not probable or foreseeable by the first wrongdoer, which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury: Phillabaum v. Lake Erie & W. R. Co., supra; Neering v. Illinois Cent. R. Co., supra. An injury, to permit recovery, must be a natural and probable result of the act or omission involved and such as an ordinarily prudent person ought to have foreseen as likely to occur, although it is not essential the defendant should have foreseen the precise injury which resulted, and what is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury: Neering v. Illinois Cent. R. Co., supra (an abnormal criminal act of assault of a third person who had no connection with the defendant railroad was not an intervening, efficient cause, under the circumstances, breaking the chain of causation). The intervention of an independent, concurrent, or intervening force will not break causal connection if the intervention of such force was itself probable or foreseeable, and in such a case the earlier act, if it contributed to the injury, may be regarded as a proximate cause: Neering v. Illinois Cent. R. Co., supra; O’Brien v. Musfeldt (1951) 345 Ill. App. 12. .

In Emory v. Addis (1874) 71 Ill. 273, a dramshop case, the Court held a plaintiff wife could recover damages for injury to her means of support where her husband had become intoxicated and nothing was known as to what happened except that he was found the next morning on a railroad track, evidently run over by a train, and the Court observed that, pp. 276, 277: “. . . but for the intoxication he would, in all probability, be living today. ... No doubt had he been sober he would have gone home with the witness, Bartells, and this fearful calamity would not have happened. . . . He who deliberately sells that which he knows will inflame the passions, deprive the party of the control of his judgment, and render him, for the time being, incapable of exercising proper care for personal safety, or that of his property, must be prepared for the consequences that may follow.” (Emphasis added.)

In Smith et al. v. People (1892) 141 Ill. 447, in a suit on a dramshop keeper’s bond for the use of the plaintiff widow the Court held she could recover where the husband had become intoxicated, could not properly and safely manage and drive his team of horses, they ran away, he had been thrown from the wagon, and was killed. The Court said, pp. 452-453:

“. . . So, also, if, notwithstanding the intoxication of the deceased, he would not have been killed if his horses had not run away, yet nevertheless there would be a good cause of action. The very gravamen of the case is, that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away, and he was thrown out of the wagon and hilled. . . .

“Instruction No. 3 was properly refused, and for like reason. Even if the clips or fastenings on the whiffletrees dropped off and allowed the tongue of the wagon to drop down upon the road, and in consequence the team became frightened and unmanageable, and ran away, yet, non constat, that if the deceased had been duly sober and in fit condition to manage and control the team he would not have been able to prevent the running away of the horses or the overturning of the wagon.” (Emphasis added.)

In Glreenacre v. Filby (1916) 276 Ill. 294, a dram-shop suit, the plaintiff widow recovered for injury to her means of support where her husband had become intoxicated and was later found on a railroad track, run over by a train. The Court, in part, said, p. 296:

“The questions of fact in dispute at the trial were whether Oreenacre was so intoxicated as to be unable to exercise care and caution for his own safety, and whether he was on the track in consequence of such intoxication or went upon the track with the intention of committing suicide.” (Emphasis added.)

In Haw v. 1933 Grill, Inc. (1938) 297 Ill. App. 37, an action under the Dram Shop Act, the Court held a plaintiff wife could recover damages for injury to her means of support where her husband became intoxicated at a tavern, noisy, and boisterous, as he had done at that tavern several times before, and a sober third party, one of the tavern agents or managers, struck and injured the husband in attempting to eject him, and it was immaterial whether the third party’s act was wilful or accidental, for the intoxication of the husband was a contributing factor and a proximate cause of the injury. The defendant must, under the circumstances, be presumed to have foreseen that its act of selling the liquor might have produced or been followed by the altercation in which the husband was injured, it not being necessary that the defendant should have foreseen the actual result, it being sufficient that such a result might reasonably occur, and the injury was not the result of a so-called independent, intervening cause, namely, an assault by a sober third person, because the defendant might reasonably have anticipated such a consequence as this injury as a result of the intoxication.

In Cross v. Ryan, 124 F.2d 883 (CCA 7th, 1941), the Court held a plaintiff widow and her children could recover under the Dram Shop Act where the husband, Cross, had become intoxicated, had assaulted one Stout, Stout had then assaulted Cross, and Cross, because of his intoxication, was unable to defend himself and was injured. The act of Stout, the assailant, was not an intervening, independent cause; the causal chain was not broken merely because the actual injury was inflicted by Stout, a person not intoxicated, assuming Stout was not intoxicated. The Court said, pp. 886-7: “As to the cause of action set up in counts 1, 4, 7-, and 10: In these counts it is charged that the defendant sold intoxicating liquor to George Cross, the husband and father of the plaintiffs, as a result of which he became intoxicated, assaulted and abused George Stout, who in turn by reason of the drunken assault of Cross, assaulted Cross, who, because of his intoxication, was unable to defend himself, and was thereby injured, from which injuries he died. The defendant-appellant argues that because it was not alleged that Stout was intoxicated by liquor sold him by the defendant and as a result thereof he assaulted and beat Cross to death, that Stout was the intervening responsible cause of the injury to Cross, and not the sale of intoxicating liquor to Cross by the defendant.

“We think each of the counts states a cause of action. The statute clearly provides that if the wife and children shall be injured in their means of support in consequence of the intoxication of any person, they shall have a right of action against any person who sold or gave the intoxicating liquor which caused the intoxication of such person, in whole or in part.

“The allegations of these counts as we have above outlined them come clearly within the provisions of the statute, and allege the causal connection between the sale of the liquor and the intoxication, and the injury and the death. Haw v. 1933 Grill, Inc., 297 III. App. 37, 17 N.E.2d 70.” (Emphasis added.)

In Arington v. Phelps, 79 F. Supp. 295 (D. C. E. D. Ill. 1948), the Court followed Cross v. Ryan, supra, referred to Schroder v. Crawford, supra, Haw v. 1933 Grill, Inc., supra, said that the prevailing judicial authority seems to be that the Dram Shop Act is remedial and should be so construed as to suppress the mischief involved and advance the remedy provided by the statute, and that the Illinois Courts do not follow in dram-shop suits the strict rules of proximate cause abiding in ordinary negligence actions. In Casey v. Burns (1955) 7 Ill.App.2d 316 we recently had occasion to examine some of the foregoing cases. That also was a dramshop suit involving an altercation or assault. We held the plaintiff wife could recover and there was no error in denying the defendant’s motions for directed verdicts and for judgment notwithstanding the verdict. The husband had become intoxicated at the defendant’s tavern, was found later that evening at the rear of the tavern, beat up, and there was evidence the defendant’s bartender had struck the husband with a blackjack. We held there was competent evidence the plaintiff had been injured in her means of support in consequence of the intoxication of her husband, as a proximate result of such intoxication, and that the question of proximate cause was properly a question of fact to be determined by the jury from a consideration of all the evidence and attending circumstances, and was not a pure question of law.

We think there was competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorably to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support “in consequence of the intoxication” of her husband Danhof, as a proximate result of his intoxication. The injury here incurred is not an unnatural or improbable consequence of the intoxication and is of such a character as an ordinarily prudent person in the position of the defendant tavern operators ought to have foreseen might probably occur as a result, in whole or in part, of the intoxication. Proximate cause here is not a pure question of law only. Some of the facts are disputed, and so far as they are undisputed there can be a difference in the judgment of reasonable men as to the inferences to be drawn therefrom. Proximate cause here is, as it ordinarily is, a question of fact to be determined by the jury from a consideration of all the evidence and attending circumstances. The inference and result reached by the jury is not unreasonable. That the jury might have drawn different inferences and reached a different result is no justification for setting the verdict aside.

The Dram Shop Act is remedial in character and should be so construed as to suppress the mischief involved and advance the remedy provided by the statute. That the defendants may not have foreseen the precise injury which here resulted is not significant. It is not the intention of the statute that the liquor alone, of itself, exclusive of some other agency, should do the whole injury. The intoxication of Danhof may not have been, and probably was not, the sole cause of the injury. It may not have been the last or nearest cause. But it certainly at least concurred with another, or other cause, — the Danhof-Yernetta affair and its ramifications and the Morris assault, — acting at the same time, and in combination therewith caused the injury.

The defendants having sold that which they knew would inflame the passions of Danhof, deprive him of the control of his judgment, and render him, for the time being, incapable of exercising proper care for his personal safety, must be prepared for the consequences that may follow. Danhof, in consequence of his intoxication, was evidently unable properly to manage, control, and defend himself, — he said so himself, — and, in at least partial consequence thereof, he suffered his injuries and the plaintiff suffered her injury. Had he been sober he might not have been with Vernetta at all, or he might not have been at the place where and at the time when the incident occurred. Or, had he been sober and in fit condition to manage, control, and defend himself he might have been able fully or better to defend himself and to prevent or greatly minimize the assault of Morris, keeping in mind particularly that Danhof weighed considerably more than Morris and was somewhat taller, though older.

The jury may well have inferred and found that Danhof was so intoxicated as to be unable to exercise due care and caution for his own safety. Danhof’s getting out of his car, in the first instance, as Morris came up to Hank’s Tavern, trying unsuccessfully to stop Morris, and trying to talk with Morris and make some feeble excuse for having Vernetta with him, may, under the circumstances, considering the unenviable position Danhof was in, have well been a failure to exercise due care and caution for his own safety, — acts which perhaps he or any prudent person in a state of sobriety, rather than inebriety, might not have done, and if he’d stayed in the car, kept quiet, and not perhaps have irritated Morris any further, it is at least possible none of the subsequent injuries he suffered would have occurred.

Further, Morris’ blows to Danhof’s face did not knock him down; he remained standing, dazed (doubtless partly because of the blows and partly because of his intoxication), started to go, staggered, stumbled, or tripped, and finally fell, hitting his head on the side of the building. To what exact extent that staggering, stumbling, tripping, falling, and hitting his head on the building were due to intoxication, and to what extent those acts were due to Morris’ original blows is, of course, impossible to say, and it is unnecessary to know, but certainly to some reasonable extent, and perhaps a substantial extent, those acts were due to Danhof’s intoxication and the jury may well have so felt. That some of those actions were, undoubtedly, due to Morris’ blows is not significant when the intoxication of Danhof was a concurrent, combined, proximate cause.

Danhof and Vernetta were both known at both of the defendants’ taverns. They were not just complete strangers coming in for a few drinks. The evidence, together with such reasonable inferences and implications as might have been drawn by the jury therefrom, is sufficient to indicate that they were known by the defendants or their agents to be seeing each other and running around together, though not married to each other, and though married each to someone else. There was at least sufficient known to the defendants to put them on notice of a very delicate, if not a potentially dangerous and explosive, situation, concerning the domestic-marital affairs of the Danhof and Morris families, which a reasonable degree of prudence would seem to indicate ought not to be irritated, enhanced, inflamed, or encouraged. Under those circumstances, particularly, prudence would seem to indicate the defendants should have been more than usually careful and discreet in the dispensing of intoxicating liquor to Danhof.

Under the circumstances here it cannot be said that, as a matter of law, the sole cause of Danhof’s personal injuries and the plaintiff’s injury in her means of support was the Danhof-Vernetta affair and that the injuries were in no way related to Danhof’s intoxication. That affair undoubtedly played its part, an important part, in the drama later developed at Hank’s Tavern. But intoxicating liquor consumed by Danhof also played its part, also important. They were doubtless both causes of the resultant injuries, and not mutually exclusive causes. To be a proximate cause, and for it to be possible for the jury to so find, the intoxication need not be the sole cause, or even the last or nearest cause. As long as the intoxication of Danhof concurred with the Danhof-Vernetta affair, acting at the same time, and in combination therewith caused the injuries, it is a proximate cause.

Nor, as a matter of law, was the sole cause of Danhof’s personal injuries and the plaintiff’s injury in her means of support the assault of Morris upon Danhof. The fact that Morris, a sober third party, did strike Danhof, the intoxicated person, does not exempt the defendants, and such does not constitute an independent, intervening efficient cause eliminating the intoxication of Danhof as a proximate cause. That assault did not break all causal connection between Danhof’s intoxication and the injuries. That force was itself probable or foreseeable under the circumstances. The assault, with its background in the Danhof-Vernetta affair, combined with Danhof’s intoxication and, in concurrence therewith, caused the injuries. Danhof’s intoxication continued in part, greater or lesser, to contribute to the injuries and to be a contributing factor and a possible proximate cause, though not necessarily the only cause. The principal cases the defendants refer to on this are Shugart v. Egan (1876) 83 Ill. 56, and Schmidt v. Mitchell (1876) 84 Ill. 195. We do not believe them to be inconsistent with our views, when considered in the light of their particular facts, and also when the other and later cases referred to above are considered. They were each decided but a short while after the adoption of the original Dram Shop Act of 1874. Neither case cites any dramshop case precedents directly in point. The opinion in Shugart v. Egan was the second opinion in the case, after a rehearing had been allowed, and reached the opposite conclusion from the first opinion, — indicating the Court was not altogether sure as to the construction of the then new Act. Schmidt v. Mitchell, though decided at the same term, does not refer to Shugart v. Egan, and in the Schmidt case, after the intoxicated person had received a gunshot wound in the leg, he, against medical advice, and while sober, had walked upon his leg, it became worse, was later amputated (perhaps unnecessarily), and three hours after the amputation the person died, some several days after the original wound. The Court observed in Arington v. Phelps, supra, for example, as to the Shugart v. Egan case, that though it has not been expressly overruled it has lost its compelling force as authority because of the later decisions, — most of which we’ve set out above.

In their reply brief the defendants for the first time state a wholly new point, not stated in their original brief, to the effect that Danhof’s intoxication, if any, was only a condition which made an injury possible, which condition was not concurrent with the subsequent assault of Morris, and the mere existence of the condition was not a proximate cause of the injury, and they cite nine altogether new cases, not cited (with one exception) in their original brief. Under the circumstances the plaintiff has had no opportunity to respond to that point or those cases, and we do not have the benefit of the plaintiff’s views. None of the cases there cited apparently are dramshop cases, except one, Whiteside v. O’Connors (1911) 162 Ill. App. 108, and in that case a judgment for the defendants was reversed and remanded. We do not believe the point or the cases applicable to this dramshop case, except Whiteside v. O’Connors, and it is not favorable to the defendants.

The second real issue seems to be whether, as a matter of law, the plaintiff wife was an active and willing agent in procuring Danhof’s injuries, thereby contributing to her own damages, and whether she is an innocent suitor under the Dram Shop Act. It is, of course, true, as the defendants point out, that if a plaintiff wife could have deprived the husband of the liquor by breaking the jug, or throwing out its contents, and does not do so, she is a willing party to his conduct and cannot recover: Beget v. Bell (1875) 77 Ill. 593; or if the injured person is an active and persistent agent, with the tavernkeeper, or alone, in causing the intoxication of his later assailant or the person who injures him, he cannot recover: Hays v. Waite (1890) 36 Ill. App. 397, and Pearson v. Renfro (1943) 320 Ill. App. 202; nor can one recover who is not innocent, i. e., one who is in a party the members of which have been drinking, who has been drinking herself, and is a participant in the intoxication of a person who later injures her: James v. Wicker (1941) 309 Ill. App. 397; nor can the plaintiff who has herself bought the liquor and become intoxicated recover for her own injuries: Buntin v. Hutton (1917) 206 Ill. App. 194. But in the present case the plaintiff May Danhof did not purchase or procure any of the intoxicating liquor at Duffy’s or Hank’s for Danhof, or participate therein, or have anything whatever to do with such. There is no evidence she urged Morris to strike Danhof except Vernetta’s and Mrs. Niles’ testimony, which the plaintiff and Danhof both denied, and it was for the jury to decide whom to believe. True, she told Morris that Danhof and Vernetta were going out together, she drove Morris and his daughter to Hank’s Tavern, she did not try to determine Danhof’s condition immediately after the altercation, and she drove Morris and his daughter back to Lacón. But there is no evidence of any predetermined plan or conspiracy or even conversation between her and Morris that he should assault Danhof; it was Morris’ suggestion that they might be in Chillicothe, and it was at Morris’ request that she drove to Hank’s Tavern; they were evidently simply looking for Danhof and Vernetta, something she’d never done before; and Morris had said he was looking for Vernetta to bring her home; she remained in the car during the altercation, saying nothing (unless Vernetta’s and Mrs. Niles’ testimony to the contrary was to be believed); within a few minutes after the altercation she returned to the scene and saw Danhof sitting up; she reported the incident to Danhof’s employer; and she went to the hospital that night and stayed until early morning. We cannot say, as a matter of law, that the plaintiff was an active and willing agent in procuring Danhof’s injuries or is not an innocent suitor. There was no burden of proof on her in those respects: Darby v. Donahue (1954) 3 Ill.App.2d 112. It was a question for the jury to decide: Lester v. Bugni (1942) 316 Ill. App. 19.

Accordingly, there was no error in denying the defendants’ motions for judgment notwithstanding the verdict. The trial court, having the additional benefit of an opportunity to observe the conduct and demeanor of the witnesses, had these same questions before it on these motions and on the prior motions for directed verdicts, and concluded the same should be denied and that it was a proper jury case. We concur.

The foregoing will be sufficient, in substance, to indicate our belief that there was also no error in denying the defendants’ motions for a new trial. The determination of the weight and sufficiency of the evidence is a fact function for the jury. They must determine the credibility of the witnesses and whom to believe where there is a disputed fact question, and there were some here. They may and must make reasonable inferences and conclusions from the evidence. It is not our function to sit as a trier of the facts, to weigh the evidence as an original matter, or as a matter of initial or first impression, and make a determination ab origine. Only in those instances where we believe a verdict to be contrary to the manifest weight of the evidence may we reverse on this ground. The matter of whether Danhof was intoxicated or not was primarily and typically a jury question of fact, there being evidence to that effect: Watkins v. Gaertner (1952) 348 Ill. App. 125. The jury in the first instance, and the trial judge in passing on this motion, having an opportunity to observe the witnesses, their conduct and demeanor, and determine the weight of the evidence therefrom as well as from the spoken words themselves, felt the preponderance of the evidence here lay with the plaintiff. We cannot say their determination is contrary to the manifest weight of the evidence. The jury was amply instructed. The defendants’ theories of the case were ably presented, and they have had a fair trial.

Accordingly, the judgment will be affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.