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Alm v. General Telephone Co.

APRIL 24, 1975.

EVERETTE ALM ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

GENERAL TELEPHONE COMPANY OF ILLINOIS, DEFENDANT-APPELLEE AND CROSS-APPELLANT. — (KEVIN ALM ET AL., MINORS BY THEIR MOTHER AND NEXT FRIEND, KAY ALM, PLAINTIFFS.)



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Everette and Kay Alm, appeal from a directed verdict entered against them by the trial court in their conspiracy action against defendant General Telephone, Everette Alm's former employer. The following issues are raised in this court: (1) Whether the trial court erred in entering a directed verdict in favor of the defendant, (2) Whether the trial court erred in refusing certain offers of proof by plaintiff, (3) Whether the trial court erred in admitting the results of a lie detector test into evidence, (4) Whether the trial court erred in refusing to allow plaintiff to cross-examine a Mr. Livingston under section 60, (5) Whether the trial court erred in restricting the cross-examination of a Joseph Profilet, and (6) Whether the trial court erred in dividing equally the expenses of discovery.

On August 20, 1971, plaintiffs filed an amended complaint alleging that on July 18, 1969, plaintiff Everette Alm was accused by defendant of fondling a minor female child, and that on July 28, 1969, plaintiff's employment was terminated by defendant. The complaint alleged that defendant had conspired with the Harris-McBurney Company to terminate plaintiff's employment with said company and had conspired with other telephone companies to deny plaintiff employment. The complaint further stated that because of the alleged conspiracy, plaintiff was deprived of his livelihood.

At the jury trial Reynolds J. Stefani, defendant's labor relations manager, testified that the Harris-McBurney Company of Michigan had done independent contractual work for defendant for many years. He stated that based on an investigation and on information accumulated he requested and received an oral resignation from Mr. Alm. He also stated that he had phone conversations with a Mr. Browning of the International Brotherhood of Electrical Workers Local 51 in the late summer or early fall of 1969 regarding the fact that Mr. Alm was working for a contractor of defendant. He stated that he told Browning that General Telephone had the right to exclude from any of their jobs or property, individuals who are unqualified, undesirable, or do not meet their employment standards.

William Livingston, a supervisor for the Harris-McBurney Company, testified that his job was to supervise employees of Harris-McBurney on the property of the telephone companies. He stated that it was also his job to procure employees for General Telephone jobs, and he would call the local unions to obtain these men. He stated that in the late summer or fall of 1969 his company was doing work for defendant at Argenta, Illinois. He stated that a daily work record was submitted to defendant by his company to show defendant the employees working on the Argenta job.

John Browning, the assistant business manager for local 51 of the I.B.E.W., testified that Mr. Alm is a member of the union. He stated that in the late summer or early fall of 1969 he had a conversation with Mr. Livingston regarding Mr. Alm.

Charles Foster, a former employee of Harris-McBurney, testified that in the late summer or early fall of 1969 he was foreman of a job at Argenta, Illinois, and that upon instructions he fired Mr. Alm.

Plaintiff testified that prior to July 1969, he was a switchman for defendant. Plaintiff then proceeded to give a detailed recital of his whereabouts on July 17, 1969, and concluded by stating that he did not fondle Cindy O'Dell, a 15-year-old girl, nor was he at the O'Dell residence on the date in question. He stated that he first heard of Cindy O'Dell when someone from the defendant security department accused him of molesting said minor. He stated that because of the allegations he was suspended on July 18, 1969, and terminated on July 28, 1969. He further stated that he then began to unsuccessfully seek employment at other telephone companies, but was only able to obtain various part-time employment at companies not connected with the telephone industry. Plaintiff further stated that he did obtain a job through the union and John Browning with Harris-McBurney at Argenta, Illinois, doing a contract job for General Telephone. He stated that he was fired after 1 week on the job, and that he called Mr. Livingston who also told him he had been fired. Plaintiff then stated that several weeks after the Argenta job he obtained work through the union and John Browning from Harris-McBurney at Belvidere, Illinois. He stated that while on that job he noticed inside the door of a General Telephone building a list of people who were not to be hired by General Telephone or their affiliates.

On cross-examination plaintiff testified over objection that on July 25, 1969, at the suggestion and insistence of the defendant he took a lie detector test in Chicago regarding the O'Dell incident, and that the results were detrimental to him.

Charles Foster was recalled and testified that he received instructions to fire plaintiff from the Argenta job. He stated that his supervisor was Mr. Livingston. He also testified that he filed a daily work report showing the employees on the Argenta job and sent it to defendant.

John Browning was recalled and testified that he made an independent investigation of the incident involving defendant, and that his facts didn't agree with the information obtained from Stefani. Various witnesses were then called by plaintiff and testified that plaintiff was with them at the relevant times on July 17, 1969.

At the close of plaintiff's evidence defendant moved for a directed verdict. The motion was granted by the trial court on August 29, 1973. Plaintiff's post-trial motion was denied on September 24, 1973.

• 1 Plaintiff contends that the trial court erred in directing a verdict at the close of its evidence because a prima facie case of conspiracy had been established. We do not agree. Under the rule formulated in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, "verdicts ought to be directed * * * only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." We find this language to be an apt description of the instant case.

• 2 A conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means (National Steel & Copper Plate Co. v. Angel Research, Inc., 39 Ill. App.2d 419, 188 N.E.2d 500, 503). The burden of proof in such cases always lies with the plaintiff, and although a conspiracy may be proved by indirect and circumstantial evidence, the evidence adduced must be clear and convincing. (Bimba Mfg. Co. v. Starz Cylinder Co., 119 Ill. App.2d 251, 256 N.E.2d 357; 11 I.L.P. Conspiracy § 36, at 116.) The complaint here alleged that defendant had conspired with Harris-McBurney and other telephone companies to deprive plaintiff ...


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