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Franklin v. Grossinger Motor Sales

MARCH 20, 1970.




Appeal from the Circuit Court of Cook County; the Hon. DANIEL J. McNAMARA, Judge, presiding. Affirmed.


Rehearing denied April 22, 1970.

The action before us was instituted as an action for malicious prosecution of a civil case. The trial court directed a verdict in favor of defendant Grossinger Motor Sales, Inc., at the close of plaintiff James T. Franklin's case. Following denial of a post-trial motion, the cause was appealed to this Court.

On October 1, 1960, plaintiff had gone to defendant's place of business and agreed to purchase a 1960 Pontiac. The agreement involved a $400 trade-in allowance on the automobile then owned by plaintiff, which was taken as a trade, and a lien balance of $2,600 due on the old automobile was to be assumed and paid by defendant company. Plaintiff was, by the terms of the bill of sale, to pay $500 in cash, leaving a balance due defendant motor company of $3,345 which was payable over a three-year period, with the first installment being due on November 12, 1960. According to plaintiff's testimony, after he signed the note and agreement, he paid the $500 down payment to Irwin Grossinger. Irwin Grossinger testified that the $500 was not paid, as he had forgotten to ask for it. After plaintiff left, driving the automobile, Irwin Grossinger instructed an employee to contact plaintiff and to obtain the $500 down payment. Plaintiff, however, refused to pay the $500, insisting he had already paid it. On October 7, 1960, defendant repossessed the Pontiac which plaintiff had purchased, but plaintiff thereafter went to the Grossinger Motor Sales and took possession of his car again. Plaintiff thereafter consulted an attorney and returned the automobile to defendant company. The Pontiac remained in the possession of defendant. Defendant asserted it would store the car until the plaintiff came in with the $500. Defendant also insisted that the company had the right under the written agreement to repossess the car if the $500 was not paid.

Defendant company then turned the papers over to the attorney for the company instructing him to recover the loss but defendant gave the attorney no specific instructions as to what to do. On October 17, 1960, defendant company by its attorney filed a confession of judgment action against the plaintiff. This action was on the note which plaintiff had signed on October 1, 1960, and the judgment was entered on October 18, 1960, for $1,357.50 and costs. The first payment on October 1, 1960 note was not due until November 12, 1960. Plaintiff thereafter retained an attorney to represent him in connection with the judgment, and on November 17, 1960, plaintiff moved to vacate the judgment obtained by confession. Following several continuances, such judgment was vacated. On April 4, 1961, the suit was dismissed for want of prosecution.

Shortly after the judgment by confession was obtained, the attorney for defendant-company had execution issued, and such execution was served on plaintiff. No money was withheld or paid, nor was any property attached as a result of such execution. Plaintiff's employer, Peer Cartage Co., received a "Wage Demand in Garnishment" on October 20, 1960, which had been mailed by the attorney for the defendant Grossinger Motor Sales. The evidence disclosed that plaintiff had worked for Peer Cartage Co. since August of 1956 and during this period, although employed by Peer Cartage, he worked at the Webcor Plant since Peer Cartage had contracted to furnish drivers to Webcor. Joseph Bielek, an employee of Webcor, was the supervisor and director of plaintiff's activities. Plaintiff worked alone as a trucker.

On October 21, 1960, plaintiff was notified by Mr. Gade of Peer Cartage that his employment was terminated. In testifying in the case, as plaintiff's witness, Mr. Gade stated that he was told to terminate the employment by Mr. Pyre, his superior. He testified that Peer Cartage did not honor "wage demands" but rather told employees that it was up to employees to work such problems out. No wages were withheld from plaintiff by Peer Cartage. Mr. Gade further testified that plaintiff would not have been allowed to continue his employment even if the wage demand had not been served, as his employment would have been terminated for "other things." He further testified that the reason that plaintiff was fired was because he stopped for breakfast before going out on a run, in violation of union rules. Mr. Gade stated that the information he had as to plaintiff's conduct was not from his own observations, but was rather communicated to him by Mr. Pyre, who was in the hospital when the case was tried. Mr. Gade, however, did testify expressly that the wage demand was not one of the reasons for terminating plaintiff's employment. Mr. Bielek of Webcor, who had supervised the activities of plaintiff for four years, testified that he had no complaints about plaintiff's work and had never heard of any complaints. He further stated that he had no power to fire employees of Peer Cartage but he could demand that they be removed from working for Webcor. Following the termination of his employment by Peer Cartage on October 21, 1960, plaintiff remained unemployed from that date until he was rehired by Peer Cartage on January 13, 1961.

The action which was instituted by plaintiff against Grossinger Motor Sales, Inc., was for malicious prosecution of a civil case, based on the confession of judgment case which was later dismissed for want of prosecution. It was alleged specifically by plaintiff that, as a direct result of the service of the wage demand, plaintiff's employer terminated his employment. It was also recited that defendant's action in failing to pay Mercantile Discount Corporation the amount of $740.92 had wrongfully resulted in a judgment as against plaintiff. On May 1, 1961, Mercantile Discount Corporation, which had financed plaintiff's Cadillac which had been traded in on the purchase of the Pontiac, obtained a judgment by confession against plaintiff for $1,474, which amount was later reduced by agreement to $740. That judgment was still unsatisfied so far as the record discloses. The parties recognize the obligation of defendant as to payment of the Mercantile Discount Corporation obligation was not an appropriate basis for maintenance of a malicious prosecution action and that matters relating to defendant's confession of judgment and wage demand referred to herein would be the sole basis for maintenance of such action.

[1-3] Action for malicious prosecution of a civil proceeding is not favored by the courts of this State on the basic ground that courts should be open to litigants for settlement of their rights without fear of prosecution for calling upon the courts to determine such rights (Schwartz v. Schwartz, 366 Ill. 247, 8 N.E.2d 668). In an action for malicious prosecution plaintiff is required to show that defendant began the proceeding against plaintiff with some ulterior purpose other than seeking the benefit that it would receive from a decision in its favor in such action. It must be shown in such type of action that defendant originally brought its action in order to force plaintiff to do something other than would normally be required as a result of a claim asserted, or that defendant anticipated some result apart from merely winning or other normal procedure in the lawsuit. As stated in Ammons v. Jet Credit Sales, Inc., 34 Ill. App.2d 456, 462, 181 N.E.2d 601:

"Abuse of process (or malicious abuse of process) is the misuse of proper process to effect an object not within its proper scope. It differs from malicious use of process in that the latter is the starting of process without probable cause, a prosecution upon a demand or accusation that has no foundation in fact."

The court in the Ammons case also pointed out that the mere institution of a proceeding, even with a malicious motive, does not constitute an abuse of process. There must be both the existence of an ulterior purpose and an act in the use of legal process not proper in the regular prosecution of the proceedings. In the cause before us, the action of defendant was clearly to recover the amount it claimed to be due to defendant and there was no showing of an ulterior motive in bringing the action.

We, therefore, have before us an action for malicious prosecution of a civil suit. To sustain such action for malicious prosecution of a civil suit, the following are required to be shown: (1) the institution of civil proceedings by defendant, (2) termination of such proceedings in favor of plaintiff, (3) want of probable cause for the proceeding, (4) malice on part of defendant in bringing such proceedings, and (5) special injury to plaintiff as a result of such action (Ammons v. Jet Credit Sales, Inc., 34 Ill. App.2d 456, 181 N.E.2d 601; March v. Cacioppo, 37 Ill. App.2d 235, 244, 185 N.E.2d 397; Carbaugh v. Peat, 40 Ill. App.2d 37, 47, 189 N.E.2d 14; Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569). In the case before us, while there may be some areas of doubt as to want of probable cause or malice (Freides v. Sani-Mode Mfg. Co., 33 Ill.2d 291, 296, 211 N.E.2d 286; Vasquez v. Jacobs, 23 Ill. App.2d 457, 464, 163 N.E.2d 230), the real question before us, and the basis upon which the court directed a verdict, stems from the asserted failure of plaintiff to prove "special injury" as required to maintain the action.

The plaintiff has asserted in the complaint that his credit was injured and for a time his property was subject to the lien of the judgment. The courts of this state have indicated that this alone is not "special injury" of the character required in a case based upon malicious prosecution (Schwartz v. Schwartz, 366 Ill. 247, 8 N.E.2d 668). In the Schwartz case the court pointed out (at page 252):

"While the charge is that because of this judgment against him his credit was injured and his property became subject to a lien for the judgment, yet such are characteristics of all money judgments in ordinary civil cases. There is no evidence that appellant attempted to deal with his property during the few days in which this judgment was in existence. There is no evidence of special loss to him of any character, over and above the ordinary expense and trouble attendant upon the defense of an ordinary civil suit, and therefore, under the rule announced in Smith v. Michigan Buggy Co., supra, and other cases herein cited, there is no showing of special damages. General damages are such as the law implies and presumes to have accrued from the wrong complained of. Special damages are such as actually, but not necessarily, are sustained, and so are not implied but must be proved."

As indicated in the Schwartz case, special damage of the character under consideration in the case before us must actually be proved and cannot be implied.

In March v. Cacioppo, 37 Ill. App.2d 235, 185 N.E.2d 397, a confession of judgment under a lease was involved. The lease had not been signed by the lessees and although there was no acceleration clause, judgment was confessed for rent of $1,050 which was the amount provided to be paid under the lease terms to the end of the period of the unsigned lease. Only $175 was due in rent at the time of confession of judgment. Defendant then actually garnished plaintiff's bank account and deprived plaintiff from the use of $1,397.50 in his bank account from the middle of November 1960, until January 5, 1961, when the judgment was reduced to $175 and costs. The court there allowed a recovery for malicious ...

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