Appeal from the Circuit Court of Carroll County; the Hon.
MARVIN F. BURT, Judge, presiding. Judgment affirmed.
Based upon a complaint charging defendant with malicious prosecution, each plaintiff, in the Circuit Court of Carroll County recovered a judgment against the defendant for $1750. This judgment was entered upon a verdict of a jury. The trial court, overruled defendant's post-trial motion and this appeal follows.
The complaint filed June 20, 1961, consisted of two counts. In the first count Harlan Carbaugh alleged that he had always been a good and honest citizen, had always behaved himself and had never been guilty or suspected of any crime and on and prior to March 31, 1961 was not guilty of the crime of malicious mischief. This count further alleged that prior to March 31, 1961, the plaintiff was a duly elected alderman of Lanark, Illinois and was a candidate for re-election at the election to be held on April 18, 1961; that defendant was Mayor of Lanark, and a candidate for re-election; that plaintiff is sole owner of, and had for several years conducted a farm implement business in Lanark, all of which was well known to defendant.
This count further alleged that defendant maliciously and without probable cause and intending to injure plaintiff signed a complaint charging plaintiff with the crime of malicious mischief and caused the plaintiff to be arrested by the Sheriff and that a trial was had on April 3, 1961 which resulted in the acquittal of this plaintiff.
The second count was on behalf of plaintiff, Barklow and was substantially the same as count one, except it was alleged that this plaintiff was on March 31, 1961, and for several years prior to that date, the owner of an electrical contracting business. Attached to the complaint were copies of the criminal complaints, verified by defendant. One of the complaints charged, that plaintiff, Carbaugh on March 28, 1961, "wrongfully, unlawfully, wilfully and maliciously injured one single door combination safe being then and there the personal property of the City of Lanark, a municipal corporation of the State of Illinois," contrary to the provisions of Section 425 of the Criminal Code of this State. The other criminal complaint was identical except it made the same charge against plaintiff, Barklow.
The answer of defendant admitted that plaintiffs were aldermen of the City of Lanark and that defendant was Mayor of that City and had been for many years and was a candidate for re-election. The other allegations of the complaint were denied. By his affirmative defense defendant averred that at the time of the issuance of the complaint and warrant referred to in the complaint, defendant was acting in his official capacity as Mayor, and acting for and on behalf of the City of Lanark; that he was operating in conjunction with the City Clerk and signed the complaint under the advice of the Sheriff and State's Attorney of Carroll County and that the complaint and warrant were prepared by the State's Attorney after defendant had sought and obtained legal advice from the State's Attorney.
Counsel for appellant states that there is no question with reference to the pleadings, admission or rejection of evidence, conduct of counsel, or instructions, presented by this appeal; that it is appellant's contention that the evidence found in the record does not sustain the verdict; that the conduct of appellant in consulting with Robert L. Morris, City Attorney and Wm. B. Petty, State's Attorney, exempts defendant from liability in this case and that the evidence with reference to damages is wholly insufficient to sustain the judgment.
The record discloses that on March 21, 1961, defendant was the Mayor of Lanark and had been a member of the City Council, either as Mayor or an Alderman, for seventeen years prior to that date. He was a candidate to succeed himself as Mayor in the election to be held on April 18, 1961. Harlan Carbaugh one of the plaintiffs, was at that time one of the six Aldermen of the City, Carbaugh was also a candidate for Mayor Plaintiff, Warren Barklow, was also an Alderman and he and Carbaugh were political opponents of the Mayor. The three parties to this litigation were all engaged in private business in Lanark and had been associated in city business and city affairs for many years. As abstracted Mr. Peat testified: "I have known Mr. Carbaugh all his life. He has lived in the community and been in business all during this time and so have I. To my knowledge, he has never been arrested for any crime. I did not personally contact Mr. Carbaugh or Mr. Barklow with reference to why they removed the safe because neither one of them was giving me any cooperation on the City Council. I did not consult with them. Mr. Carbaugh and Mr. Barklow and I have been at odds for a number of years. Mr. Carbaugh was trying to take over the duties of Mayor and Mr. Barklow was trying to take over the police department. Mr. Carbaugh was a good Alderman in handling city business."
The safe referred to by Mr. Peat in his testimony, the record discloses, was an iron one purchased by the City in 1934. It had been moved to the back portion of the City Hall and had not been used for any purpose since 1935. The City was considering making an opening from the rear portion of the City Hall into a garage. In order to do this the safe had to be moved or disposed of. On March 21, 1961, at a regular meeting of the council, at which the Mayor and all six Aldermen attended, a motion was made and carried authorizing the Building and Grounds Committee of the Council to have this door constructed and the junk in the rear of the City Hall removed.
The members of the City Council at this time were, Perry Baxter, Darius Krell, Ralph Glenn, Keith Rogers, Harlan Carbaugh, Warren Barklow and the defendant, Mayor George Peat. Mr. Baxter testified that he was Chairman of the Public Grounds Committee; that on March 27, 1961 "We met and discussed cleaning out the back part of the City Hall and installing a garage door which was to face east in the back of the building and was to be about 14 feet by 10 feet. All the Aldermen were present at this meeting. In the southeast part of this building there was some junk, along with the safe, which would obstruct the door opening, and we had authority to clean up that part of the building, and the junk was subsequently removed and the garage door has been constructed. I know that Carbaugh had authority to move the safe. We gave Mr. Carbaugh the authority to remove the safe; that is, the Building and Grounds Committee, and all six aldermen were present when he was given this authority. The safe was about 3 feet wide, 4 feet high and 2 1/2 feet deep. It was on rollers and capable of being moved. The safe had on it 1849, and was over 100 years old and hadn't been used by the City."
Darius Krell testified that he was a member of the Public Grounds Committee and that at the meeting on March 27, 1961, all the Aldermen were present but the Mayor and City Clerk were not there. Mr. Krell further testified that the back room of the City Hall was used mostly for storage; that there was a safe there "in the place where a door was to be cut." He further testified that Mr. Carbaugh was given authority by the Public Grounds Committee to remove the junk from that area. "We decided," continued this witness, "to junk the old safe. It was about 3 feet high, 30 inches wide and 3 feet square. The safe was not being used by the City Council as we had a safe in the council room, which was built in the wall."
Ralph Glenn testified that he attended this meeting on March 27, 1961 and saw the safe in the garage area of the building and that there was other junk there. "We all agreed," testified Alderman Glenn, "that the area should be cleaned up and that the safe should be junked. We all agreed to junk the safe but nobody was specified to junk it. The safe was junk."
Keith Rogers was Chief of Police of Lanark and also an alderman. He was called as a witness by defendant and testified that he was a member of the Public Grounds Committee and attended the meeting on March 27, 1961; that the matter of removing the safe was discussed but how it was to be opened was not considered. He further testified that nobody was given authority to remove the safe from the City Hall. On cross-examination this witness testified: "I suggested that the safe be moved because it was of no use. I felt the safe should be removed but not junked. The safe was in average condition and could be used. The safe was never opened that I know of and I did not know of any one who could open it."
The plaintiffs testified that at this meeting on March 27, 1961 the members of the Building and Grounds Committee decided to junk the safe and authorized Mr. Carbaugh to remove it. Four days later, on the morning of March 31st, Leslie Fulrath, Superintendent of Streets and Chief of Police of Lanark, was at the City Hall and with Earl Nailer, City Clerk, was engaged in cleaning the rear of the City Hall where the proposed door was to be installed. Mr. Fulrath testified that the safe was in the southeast corner of the Hall; "that a lot of things were stored there, some old paint and broken chairs were back there. We were supposed to clean those out. Keith Rogers, Mr. Carbaugh and Mr. Barklow ...