APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 9, 1971.
An amended complaint was filed by Charles W. Jamieson alleging the conversion by the corporate and individual defendants of a number of Federal Reserve Notes deposited by Jamieson in a safe deposit box rented by him from defendant American National Safe Deposit Company.
On defendants' motion to strike and dismiss the amended complaint, the trial court entered an order dismissing out of the case the individual defendants, Sylvester Goldschmidt and Charles Garry, and also striking from the amended complaint Paragraphs 18, 19 and 20 which related to, respectively, the severe emotional distress allegedly suffered by Jamieson as a result of the occurrence; the alleged maliciousness of the defendants in their actions; and the aggravation of the incident by the alleged violation of Jamieson's federal constitutional right to freedom from unlawful search and seizure. The order of the trial court also struck that part of the ad damnum clause of the amended complaint which requested a special finding that malice was the gist of the action, and that a body execution issue to aid Jamieson in obtaining satisfaction of the judgment sought to be entered.
The order of the trial court specifically recited that there was no just cause to delay enforcement or appeal of the order, and Jamieson prosecuted this appeal.
Charles W. Jamieson (hereinafter "plaintiff") filed his original verified complaint on September 3, 1968, and on September 16, 1968, on prior motion of defendants, the trial court struck and dismissed the original complaint, with leave to plaintiff to file an amended complaint.
The instant amended complaint was filed on March 11, 1969, alleging that the American National Safe Deposit Company (hereinafter "Safe Deposit Company") was engaged in the business of leasing safe deposit boxes on its vault premises at 33 North La Salle Street in Chicago, and that defendant American National Bank and Trust Company (Bank) was engaged in the banking business at the same address. It further alleged that Sylvester Goldschmidt (Goldschmidt) was an executive officer of the Safe Deposit Company and that Charles Garry (Garry) was the auditor of the Bank. It also alleged that plaintiff is an attorney admitted to practice in the State of Illinois.
The amended complaint further alleged that plaintiff was a lessee of safe deposit box number b-43 from the Safe Deposit Company, that plaintiff's rent for the box was paid, that the lease to the box was in the possession of the Safe Deposit Company, and that plaintiff had one key to the box. The amended complaint alleged that plaintiff went through a customary procedure whenever he withdrew his safe deposit box from the space provided for it in the vault on the Safe Deposit Company's premises: he withdrew the box from the vault, opened it in a private room which had a door that locked when closed, and returned the box to the vault space provided. It was alleged that in the safe deposit box was kept cash money and other valuable papers, such as clients' papers, collector's items, and the like.
The amended complaint alleged that on or about June 7, 1966, plaintiff withdrew the box from the vault space provided, opened the box and removed a number of accumulated Federal Reserve Notes of various denominations, together with a white sheet of paper on which he had noted additions made to the accumulated notes, all of which were made into a bundle and held together with a rubber band. It was alleged that plaintiff at that time added more notes to the bundle, bringing the total value of the notes contained therein to $1600; that he made a notation to the effect on the sheet of paper attached to the bundle; that he replaced the rubber band around the bundle and the sheet of paper; that he replaced the bundle into and shut the box; that he returned the box to the vault space provided; and that he observed the vault attendant lock the door to the vault space provided for the box with plaintiff's key and a master key. It was alleged that plaintiff then obtained his key from the attendant and exited the premises.
The amended complaint alleged that on July 5, 1966, plaintiff returned to the Safe Deposit Company and, in accordance with customary procedure, withdrew the safe deposit box from the vault space provided and took it to the private room where he opened the box. It was alleged that plaintiff observed that the Federal Reserve Notes and the sheet of paper were missing from the box, and that he immediately closed the lid to the box and reported the matter to Goldschmidt. It was alleged that Goldschmidt thereupon asked plaintiff to follow him, that Goldschmidt led plaintiff to the premises occupied by the Bank, and that Goldschmidt introduced plaintiff to Garry and left the room. It was alleged that plaintiff informed Garry that the Federal Reserve Notes were missing from his safe deposit box, and that Garry opened a drawer to his desk and removed and handed to plaintiff the bundle of Federal Reserve Notes and a sheet of white paper with plaintiff's notations, all held together with a rubber band.
Paragraph 14 of the amended complaint alleged that plaintiff counted the Federal Reserve Notes in the bundle handed to him by Garry and found that they totaled $1460, and that he advised Garry that the bundle contained $140 less than originally contained and pointed out to Garry the $1600 notation on the paper.
Paragraph 15 of the amended complaint alleged that Garry thereupon requested that plaintiff sign a receipt showing the amount of $1460 from the Safe Deposit Company, that plaintiff signed the receipt but endorsed upon it the words: "This is not and is not construed as a release. Jamieson."; that Garry refused to accept the receipt with the said endorsement and also refused to deliver the bundle of notes to plaintiff without the original receipt, and that the plaintiff left the premises without the notes.
Paragraph 16 of the amended complaint alleged that a few days later plaintiff returned to the Safe Deposit Company and served a formal demand upon the Company for $1600 by handing the demand to Goldschmidt and asking him to sign for it, that Goldschmidt accepted the demand but refused to acknowledge receipt thereof, that the Safe Deposit Company has not complied with the demand made upon ...