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March v. Cacioppo

SEPTEMBER 19, 1962.

WALTER MARCH AND JOAN S. MARCH, PLAINTIFFS-APPELLANTS,

v.

JOHN B. CACIOPPO, HARRY PIKOWSKY AND EDWARD P. CREMERIUS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS E. KLUCZYNSKI and JACOB M. BRAUDE, Judges, presiding. Affirmed in part, reversed in part and remanded with directions.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

The defendant, John Cacioppo, was the landlord of the plaintiffs. He confessed judgment against one of them, Walter March, on his lease and, after obtaining judgment, garnisheed their joint bank account. The plaintiffs thereafter brought this action for damages alleging abuse of process, malicious use of process, injury to reputation, credit and property, intentional infliction of emotional distress and invasion of privacy. The action was brought against Cacioppo, his attorney Harry Pikowsky, who confessed the judgment and handled the garnishment, and Edward Cremerius, the attorney who acted for Walter March in confessing judgment. The defendants' motions to strike the complaint because it did not state a cause of action were sustained. The plaintiffs elected to stand on the complaint. Their suit was dismissed and they have appealed.

According to the complaint, Cacioppo, on November 9, 1960, filed a complaint and cognovit on a lease in which he charged that his tenant, Walter March, had not paid rent of $175 which was due on November 1st; that March was about to vacate his apartment and was refusing to pay rent of $1,050.00 for the period from December 1, 1960 to May 31, 1961, the duration of the lease. Attorney fees were allowed in the sum of $145, and the total judgment was $1,370. The joint bank account of Mr. and Mrs. March was then garnisheed.

The complaint further alleged (and these facts are of especial significance because the motion to strike admitted them) that on motion of Walter March, made January 5, 1961, the judgment was reduced to $175 and the attorney fees and costs were cut to $33.75, the judgment of $175 was opened up and leave was given to March to appear and defend; that the Marches had deposited $175 with Cacioppo when they became his tenants; that there was a lease but they had not signed it; that on or about November 1, 1960, they and he agreed that the lease would be rescinded, that they would move from the premises by November 30th, and that the $175 deposit would be retained by him as rent for the month of November; that despite this agreement he wrongfully stated in his complaint that they owed rent for November; that he confessed judgment for rent in futuro although the lease contained no acceleration clause, and that the garnishment of their bank account deprived them of the use of $1,397.50 from the middle of November 1960 to January 5, 1961, the date the judgment was reduced.

The plaintiffs charged that the three defendants conspired to injure them and were thereby guilty of malicious and wilful conduct. They prayed for actual damages, sustained by reason of the expenses that they were put to in employing counsel and otherwise, and for punitive damages because of the deliberate injury inflicted upon them.

A second count directed against Cacioppo alone, charged that by his acts he invaded their privacy and intentionally inflicted severe mental suffering and emotional disturbance upon them. We do not think that the complaint states a cause of action for invasion of privacy. Whether a good cause of action is stated for intentionally inflicting mental suffering is a more difficult question to resolve. This is a new tort in Illinois, recognized for the first time in Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, and objective standards by which the sufficiency of a complaint can be judged have not been developed. In the Knierim case it was held that a widow could maintain an action against the murderer of her husband for mental anguish resulting from a threat to kill her husband and the subsequent fulfillment of the threat. The facts in the cases cited in Knierim from jurisdictions permitting this action vary from those in Savage v. Boies, 77 Ariz. 355, 272 P.2d 349, where an officer in accomplishing an arrest falsely represented to a mother that her seven months old child was in the hospital as the result of critical injuries suffered in an automobile accident, to those in LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, where there were threats to sue the plaintiff and to appeal to his employer to collect a debt. In Knierim the court cautioned against permitting every emotional upset to constitute the basis of an action and said:

"Indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of the citizen rather than pamper it. But a line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility."

The criterion set by the court was the reaction of a person of "ordinary sensibilities." The court said:

"The `reasonable man' seems to be well known to jurors and we expect that they will also be acquainted with the `man of ordinary sensibilities.' Whether the aggressive invasion of mental equanimity is warranted or unprovoked, whether it is calculated to cause severe emotional disturbance in the person of ordinary sensibilities, and whether there was special knowledge or notice are all questions that will depend on the particular facts of each case. We are confident, however, that the trial judges in this State will not permit litigation to enter the field of trivialities and mere bad manners."

In determining if the pleaded facts in this case warrant a cause of action for what is said in the complaint to be "severe emotional and mental disturbances with residual physical manifestations," we must apply the facts to our concept of the "man of ordinary sensibilities." An allegedly void or exorbitant judgment was obtained against one plaintiff and the bank account of both plaintiffs was garnisheed for a considerable period of time, a period which included the Christmas season, when deprivation of one's funds could bring about more than just financial embarrassment. No other facts were pleaded. Emotional distress would vary with individuals subjected to the same exposure. It would be easier to evaluate the degree of the exposure and the depth of the distress if this case were being reviewed after evidence and trial rather than upon an order of dismissal. In the absence of evidence it is necessary to appraise the circumstances purporting to give rise to the distress. We do not believe that the distress which would be suffered by a person of ordinary sensitiveness from the facts related would be the severe mental disturbance contemplated by the Knierim decision. The trial court correctly dismissed count II.

[5-7] The remaining three causes of action are urged against Cacioppo and the two attorneys. The first of these is abuse of process. Abuse of process, sometimes called malicious abuse of process, is the misuse of legal process to accomplish some purpose outside the proper scope of the process itself. There are two essentials to an action for abuse of process: an ulterior purpose and an act in the use of legal process not proper in the regular prosecution of the proceedings. Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, 119 N.E. 265; Bonney v. King, 201 Ill. 47, 66 NE 377; Ammons v. Jet Credit Sales, Inc., 34 Ill. App.2d 456, 181 N.E.2d 601. Confession of judgment and the institution of garnishment proceedings are normal procedures in the collection of an indebtedness. The complaint does not charge an ulterior purpose or that either judgment or garnishment was used to effect an objective not within their proper scope, such as an attempt to force the plaintiffs to do something other than to pay their supposed debt. There was no abuse of process in this case.

[8-10] The second cause of action alleged in the complaint is said to be malicious use of process. As was stated in Ammons v. Jet Credit Sales, Inc., supra, malicious use of process is but another name for malicious prosecution. It was further stated that:

"Generally, an action for the malicious prosecution of a civil suit without probable cause will not lie, where the process in the suit so prosecuted is by summons only and is not accompanied by the arrest of the person, the seizure of property, or other special injury to the defendant, not necessarily resulting in all suits prosecuted to recover for like causes of action. Norin v. Scheldt Mfg. Co., 297 Ill. 521, 130 N.E. 791; Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569; Schwartz v. Schwartz, 285 Ill. App. 560, 2 N.E.2d 751. In civil cases where actions for malicious prosecution do lie, one of the essentials which must be established is the legal termination of the prosecuted suit in the plaintiff's favor. Ruehl Bros., Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392; Brandt v. Brandt, 286 Ill. App. 151, 3 N.E.2d 96."

Other essentials are the malicious motives of the defendants and the lack of probable cause, "a prosecution upon a demand or accusation that has no foundation in fact." Ammons v. Jet Credit Sales, Inc., supra; Ruehl Bros. Brewing Co. v. Atlas Brewing Co., supra; Brandt ...


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