Appeal from the Circuit Court of Du Page county; the Hon. MEL
ABRAHAMSON, Judge, presiding. Judgment affirmed.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
This action was brought in two counts, one for malicious prosecution and one for false arrest to recover damages against the defendant. The jury returned a general verdict in the sum of $1,000, upon which verdict judgment was entered. Defendant appeals from the order of the trial court denying his post trial motion for judgment notwithstanding the verdict. Defendant's only contention is that the trial court erred in overruling his motion for judgment notwithstanding the verdict. It is plaintiff's position that the evidence, or the reasonable inferences from the evidence, which, taken in the light most favorable to the plaintiff, sustains his complaint.
This suit arose out of the following incidents. The defendant, Barney Jacobson, also known as Barney Jacobs, hereinafter referred to as the defendant, was on January 22, 1956, the President of the Geneva Iron & Metal Company. The Geneva Iron & Metal Company was located on Washington Street in the City of West Chicago, Illinois. The defendant had discovered prior to January 22, 1956, that certain copper briquettes were from time to time missing from his place of business. Defendant was concerned about the loss of copper briquettes from his establishment and had so informed the Chief of Police of the City of West Chicago. The Chief of Police, in turn, had instructed his officers or patrolmen to keep a thorough check and lookout for people around the defendant's place of business.
Plaintiff, D.N. Vasquez, hereinafter referred to as plaintiff, resided at Elmwood Park, Illinois. The plaintiff and his wife on Sunday, January 22, 1956, went to church and in the afternoon, they went for a drive looking for lots upon which to build a home. Plaintiff had read advertisements in the paper listing lots for sale and drove through West Chicago looking for a lot. The plaintiff stated that upon deciding to turn around and proceed back toward his home he backed his car into the driveway of the Geneva Iron & Metal Company; that his wheels were at about the sidewalk and that he did not go all the way into the driveway. Plaintiff stated that on the Sunday afternoon in question he saw no signs on defendant's property. He later returned to inspect the property on February 4th and at that time he saw a sign on which was the name of the company but saw no signs stating "No Trespassing." Three or four days following the Sunday in question, plaintiff's wife told him that he had received a telephone call and that he was to report to the Police Station in West Chicago, Illinois. The plaintiff then called his lawyer, Mr. Fine, and the two of them reported to the Police Station where the plaintiff was served with a warrant. This warrant was issued on the written complaint signed by defendant charging plaintiff with wilfully and unlawfully entering upon the land of another.
A Sergeant of the West Chicago Police Department stated that on Sunday, January 22, 1956, in the afternoon prior to 3 o'clock P.M., he was proceeding slowly in a westerly course when he observed a car coming out of the Geneva Iron & Metal Company. The Sergeant slowed his car so he could read the license number and after making a note of it sent the license number by radio to the Police Station. The Sergeant said that when he saw the car it was headed out of the driveway, facing South, right at the very edge of the property, the edge that would be sidewalk or the walking area. He did not stop the plaintiff, did not talk to him and did not know who the person was driving the car.
The Chief of Police of the City of West Chicago testified that after receiving the report of the license number that he contacted the defendant, told him about the incident and that the license number and car belonged to a party by the name of Vasquez. The defendant then checked his records and found that he had never had anyone by the name of Vasquez working for him and did not know any person of that name.
The defendant then went to the office of his attorney who was also a Police Magistrate and reported the above facts. The attorney-police magistrate advised him to sign a complaint for trespassing against the plaintiff and have a warrant issued for his arrest. The attorney-police magistrate prepared a complaint which was signed by the defendant and himself. He stated that at the actual time the complaint and warrant were prepared, he was acting as Police Magistrate. The attorney-police magistrate admitted being the attorney for the defendant prior to this matter and that he had not made it known to either the plaintiff or to his attorney, Mr. Fine. He also admitted that at the time of the hearing on the trespass complaint he was serving as both Police Magistrate and the attorney for the defendant. He then further testified that he thought it was proper to sit as Police Magistrate in a case as well as being the attorney for the complaining witness.
On the date that the complaint was set for a hearing, the plaintiff appeared with his attorney, Mr. Fine, and there was a conference with the attorney-police magistrate and with the defendant and after some extended conversation, the case against the plaintiff for trespass was dismissed. There is some conflict in the record as to whether or not there was actual testimony taken but it appears that there was none.
At no time prior to the plaintiff appearing in court on the trespass complaint did any policeman, the defendant, his attorney or the Police Magistrate make any attempt whatsoever to contact the plaintiff or discuss the case with him. There was no investigation by defendant or anyone to ascertain the true facts of the case. In fact, on cross examination, the defendant admitted that the sole purpose in swearing out the warrant was to see what the plaintiff was doing there.
There is no evidence that the plaintiff was actually arrested. His wife was notified by phone by the West Chicago Police that plaintiff was requested to come to their office pursuant to the warrant which they had for his arrest. Plaintiff and defendant neither seriously urge or argue in this court the question of false arrest or false imprisonment and we will, therefore, necessarily only consider the question of malicious prosecution.
In ruling upon defendant's motion for judgment notwithstanding the verdict, the court must determine if there is evidence, or reasonable inferences from that evidence, which, taken in the light most favorable to the plaintiff, sustains his complaint. If there is, the motion must be denied irrespective of contrary evidence or the weight of the evidence. Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665, Hughes v. New York Central System, 20 Ill. App.2d 224, 155 N.E.2d 809.
Defendant contends that he signed the complaint against the defendant with probable cause, without malice and after receiving the advice of a reputable attorney. We will consider these contentions in the following order: (1) whether or not there was probable cause (2) whether the defendant acted with malice (3) whether or not he acted after consultation with an attorney.
In support of contentions one and two, defendant cites to us the cases of Kaley v. Hulsman, 319 Ill. App. 219, 48 N.E.2d 768 and Farris v. Messimore, 219 Ill. App. 582. In the former case, the court at page 222 of 319 Ill. App. and at page 770 of 48 N.E.2d stated: "It is also the rule that to support a case of malicious prosecution, there must be both malice and want of probable cause, and they must concur."
The court in the Kaley case, supra, in deciding that plaintiff had failed to prove that defendant was moved by malice and that there was want of probable cause, stated: "Defendant did not act hastily. He attempted to obtain an interview with plaintiff ...