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Gaszak v. Zayre of Illinois

NOVEMBER 27, 1973.

JOAN GASZAK, PLAINTIFF-APPELLEE, CROSS-APPELLANT,

v.

ZAYRE OF ILLINOIS, INC., ET AL., DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. McMILLEN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

On November 19, 1963 at about 10:00 P.M., Joan Gaszak, plaintiff, was shopping at the Bridgeview, Illinois store of defendant Zayre of Bridgeview, Inc., an Illinois corporation (hereinafter Zayre). While in the store, an encounter took place (referred to later in this opinion) with Joseph [sic Ralph] Barnes (hereinafter Barnes), the store manager, and Carlo C. Spranzo (hereinafter Spranzo), a store security guard. As the result of this encounter, plaintiff filed a three-count complaint charging false arrest, assault and battery, and malicious prosecution. After answers, asserting denials, were filed, plaintiff filed two amended complaints, the last abandoning the assault and battery count.

The case was tried by a jury. At the conclusion of all the evidence, the trial court dismissed all defendants as to the false arrest charge and defendant Barnes as to the malicious prosecution charge. The jury returned a verdict in favor of the plaintiff as to the malicious prosecution charge against Zayre and Spranzo, and assessed plaintiff's damages in the sum of $10,500.

Zayre and Spranzo now appeal from the judgment entered on the jury's verdict, and plaintiff has filed a cross-appeal from the trial court's order that directed a verdict in the defendants' favor on the false arrest count.

On appeal Zayre and Spranzo urge that (i) the jury's finding that there was no probable cause for Spranzo swearing out a complaint against plaintiff was against the manifest weight of the evidence; (ii) the trial court erred in giving and refusing certain instructions to the jury; and (iii) the damages awarded to plaintiff were excessive. Plaintiff's cross-appeal challenges the trial court's directing a verdict in favor of defendants on the false arrest count.

The following is a summary of the testimony relevant to the issues presented in these appeals.

Spranzo, called by the plaintiff as an adverse witness, testified that he was employed by Zayre as an undercover agent to prevent employee shoplifting and had no credentials from any police or governmental agency; that he saw plaintiff on November 19, 1963 at approximately 10:00 P.M. when she was attempting to leave the store through the north door, whereupon he asked her to use the west exit since the north exit was locked; that plaintiff, instead of proceeding to the west exit, turned east, reentered the store through one of the vacant check out aisles, walked past the east end of the counters in a southerly direction until she reached the middlemost check out aisle, where she took some articles from under her coat and placed them on the display counter in front of the cash register. At this point plaintiff was directly east of the point where the witness was standing. Spranzo identified the articles as baby apparel. He further testified that plaintiff then continued walking in a southerly direction to the last check out counter where she stood behind three or four customers, waited her turn, and made a purchase; that he then approached plaintiff just as she was leaving the check out aisle and stated that the manager would like to see her in his office if she didn't mind; that plaintiff said "Okay" and Spranzo escorted plaintiff in a "gentlemanly fashion," by placing his hand beneath her forearm, to defendant Barnes' office; that he had no other conversation with plaintiff before entering the manager's office.

Spranzo then testified that he could not recall all that was said in defendant Barnes' office, but did remember asking plaintiff if she had "ever done anything like this before" intending to find out whether she had ever stolen anything; that plaintiff replied, in essence, that she did not know what he was talking about and began to cry. Spranzo then mentioned that, if necessary, he would get a police matron, whereupon plaintiff opened her coat in such fashion that the buttons popped off; that plaintiff refused to tell the defendants her name but, instead, threw her wallet on the desk. Spranzo guessed that they were in defendant Barnes' office for approximately ten minutes and stated that the only other conversation was plaintiff's statement that her husband made $200 per week, she was a Catholic, and did not need to steal.

Spranzo further testified that, after plaintiff left the office, she began to yell "What kind of nuts are yous [sic] that are working here?" and continued to holler until she reached the exit door; that he did not hear the plaintiff use any profane or vulgar language that evening in the store.

Spranzo then stated that, while he stood in front of the store, plaintiff slowly drove her car past the store, blowing the horn for one-half minute or so, yelling vulgar words, and hollering out loud; that he subsequently went to the police station and filed a complaint for disorderly conduct against plaintiff based on her conduct inside the store as well as in the parking lot.

Barnes testified for the plaintiff as an adverse witness. His testimony was essentially the same as that of defendant Spranzo. The only substantial difference in Barnes' account of the incident occurred when he stated that, after plaintiff was told to use the west exit, she reentered the store and proceeded all the way down to the first or second check out aisle where she pulled out an article and placed it on the cashier's counter.

Plaintiff testified that, after visiting a laundromat, she intended to stop at a nearby drug store to obtain a prescription for a sick child. On the way she stopped at the nearby Zayre store and, while in the Zayre store, she picked up a pair of baby pants and went to the only check out line that remained open, and, as she waited in line, she realized that if she stayed in the Zayre store any longer, the drug store would close and she would be unable to have the prescription filled; that she then proceeded to the door, realized she still had the pants in her hand, placed them on a counter, and continued toward the north door; that a man called to her saying that that door was closed and instructed her to "go back out through the registers and go out the front door"; that she then picked up the baby pants, proceeded to the check out counter and paid for the item; that, as she was leaving, Spranzo grabbed her saying he had some questions to ask her, whereupon holding her like she had handcuffs on, Spranzo escorted her to the office; that a discussion followed between herself, Spranzo, and Barnes; that Barnes searched her coat; that she opened her suit jacket to show she was concealing nothing, and after about one-half hour she was allowed to leave.

Plaintiff further testified she was crying and upset as she left the store, proceeded to her car in the parking lot and, as she was driving past the front of the store, saw Spranzo standing outside, whereupon she blew her automobile horn for about three seconds; that she did not holler or use vile language; that as she was leaving the parking lot the police stopped her and after a brief discussion, a policeman offered to drive her home which offer she declined.

On the following Saturday at her home, a policeman of the Village of Bridgeview arrested her for disorderly conduct. Bond was posted and later the case was transferred from Bridgeview to Lyons. Plaintiff testified she appeared in the Village of Lyons court three times and upon the failure of Spranzo to appear, the case was dismissed.

According to plaintiff, after her arrest, she detected a change in the attitude of the neighbors toward her and the children. A neighbor testified that after the police car was at plaintiff's house the reaction of the neighborhood was to treat the plaintiff coldly and stay away.

Rebecca Livigni, an employee of Zayre's, testified that on the night in question, at about 10:00, she had heard a woman yelling in the manager's office; that after plaintiff left the store, for about ten seconds she heard a car horn blowing and the horn stopped when a squad car pulled up next to plaintiff's car.

Edward Vopelak, a police officer for the Village of Bridgeview, testified he was in a car with the police chief, heard the horn, stopped plaintiff who was upset and crying, that they talked to her about five to eight minutes before she drove off; that Spranzo then told the police he stopped plaintiff because he thought she was a shoplifter but found nothing; that Spranzo was disturbed about the horn blowing and wanted to sign a complaint against her, and that Spranzo proceeded to the police station and did sign a complaint. The witness further testified that the police did not file any charges against the lady.

The complaint, sworn to by Spranzo, which was the basis for the arrest of plaintiff, was for the alleged offense of disorderly conduct. Spranzo testified that Barnes was with him at the Bridgeview police station when the complaint was signed. On the ...


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