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Winston v. Sears

OCTOBER 9, 1967.

LAURA MAY WINSTON, PLAINTIFF-APPELLANT,

v.

SEARS, ROEBUCK AND CO., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, First Municipal District; the Hon. FRANK J. WILSON, Judge, presiding. Reversed and remanded.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Rehearing denied and opinion modified January 3, 1968.

Plaintiff sues to recover damages for the torts of trespass, assault and invasion of her right of privacy which she allegedly suffered at the hands of defendant's servants. At the close of plaintiff's evidence, the trial court concluded that she had failed to establish agency and directed a verdict for defendant. Plaintiff appeals from this directed verdict assigning as error the court's failure to admit certain interrogatories into evidence as well as the court's finding that plaintiff had failed to make out a prima facie case.

In her complaint, plaintiff alleged that agents of defendant forced their way into her apartment, physically assaulted her and removed various items of furniture which she had purchased from defendant under a conditional sales contract. In its answer defendant admitted that various items of furniture had been purchased from defendant under a conditional sales contract but stated that title was reserved in defendant until the full purchase price was paid, that plaintiff was in default and that defendant had the option, upon default, to take back the merchandise. The answer denied that "five duly authorized agents of the defendant" committed the acts complained of.

At the trial plaintiff adduced the following evidence:

Jerome Smith, her six-year-old grandson, was living with her in her six-room apartment at 603 East 60th Street, Chicago. On March 2, 1960, plaintiff had been out working and was due to arrive home at about 6:30 p.m. At 6:30 the doorbell rang and Jerome opened it, expecting his grandmother. Instead, a man flashed a badge, pushed the door open on Jerome, came in and sat down. When plaintiff arrived home at 7:00 p.m. that evening a man was waiting for her in the lobby of her apartment building. He chased plaintiff up the stairs and followed her into her apartment where the other man was waiting. After unsuccessfully attempting to put the men out, plaintiff began to cry. One of the men pushed her down on the couch and pushed her back down each time she tried to stand up. The men read off a list of items which they were there to take. Five men came into the house. They spent four hours in Mrs. Winston's apartment. During this time she attempted to call her sister, her pastor, her employer and a lawyer she knew. Each time one of the men took the phone from her before she could complete the call. She was forcefully thrown across her bed, felt something snap and bled profusely. She put some keys in her bosom and one of the men reached down her bosom and removed them. The men knocked the drapes off the wall, disconnected the range and carried it out. They dumped the dirty clothes on the bathroom floor and carried out the hamper. The frozen foods were dumped on the floor and the refrigerator removed. They took the Dutch oven, ripped the rugs up and left tacks all over the floor.

During the trial plaintiff sought the admission into evidence of Interrogatories 3, 8 and 9 and the answers thereto. They read as follows:

No. 3. Q. List the names and addresses of all agents or employees of the defendant who made any arrangements concerning the repossession of merchandise from the plaintiff's apartment, which repossession occurred on March 2, 1960.

A. R.W. Prichard 820 S. Scoville, Oak Park, Ill. P. Janks 10208 S. St. Louis, Evergreen Park, Ill.

No. 8. Q. State whether subsequent to March 2, 1960, the defendant ever had physical possession of any of the merchandise repossessed from the plaintiff on March 2, 1960.

A. Yes.

No. 9. Q. If the answer to the preceding question is that the defendant had possession of some or all of said merchandise, state what disposition the defendant made of such merchandise.

A. The rug has been destroyed.

Drapes now in possession of ...


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