APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Donald A. Baikie (plaintiff) brought action against Luther High School South and Norman Meier, a teacher (defendants) claiming damages for personal injuries resulting from an alleged wilful and wanton assault and battery. A jury returned a verdict in favor of plaintiff and against both defendants in the amount of $25,000. A special interrogatory as to whether the defendant Norman Meier, the teacher, was guilty of wilful and wanton conduct was answered affirmatively. Defendants appeal.
In this court defendants contend that plaintiff's attorney made improper and prejudicial closing arguments; an expert medical opinion invaded the province of the jury; instructions of the court regarding existence of an agency and also the issues in the case were improper; and that the special verdict was contrary to the weight of the evidence.
We will consider these matters in the inverse order. Plaintiff was in his junior year at Luther High School South which is a private high school in Chicago. Norman Meier had been associated with the school for some 25 years as a teacher of mathematics and as a track and field coach. He was a homeroom teacher and also taught five classes per day comprising a total of approximately 150 students. The incident occurred on April 7, 1971, about 8 a.m., on the second floor of the school premises. A group of students had gathered near the lockers speaking to another teacher named Dennis Haegele. This teacher spoke with the group and there was some conversation and laughter. Plaintiff, as a member of the group, joined in the laughter. It does not appear that any of the group were making loud noises or that there was an unusual commotion. Plaintiff joined in these activities, not to a greater extent than any of the remaining students.
Four other students, who were members of this group when the incident occurred, were generally in agreement regarding their testimony. One student testified that her books had fallen from a locker and that Mr. Haegele spoke to the boys in a teasing manner about not helping her. Haegele then left the group. Defendant Meier approached the group and, without saying anything, seized plaintiff by the collar and pushed and slammed him against the lockers. At that time plaintiff was doing nothing. Although the group had said nothing disrespectful, defendant stated that plaintiff was disrespectful to a teacher and had laughed behind his back. Two other young men agreed generally with the testimony that nothing unusual had occurred until defendant Meier walked up to plaintiff, seized him by his shirt collar and forcibly pushed him several times against the lockers.
Plaintiff testified that the students were talking in a group and that Mr. Haegele said something about books on the floor and then left the group. Plaintiff testified that defendant "started hollering" and pushed him into a locker. Defendant accused plaintiff of laughing at a teacher but this was not true.
Defendant Meier testified in his own behalf that Mr. Haegele was trying to straighten out a problem and that the students were laughing at his efforts. Meier stated that he approached the group as Haegele left and asked plaintiff why he was laughing. Plaintiff responded that he did not laugh and moved away. Defendant testified that he then seized plaintiff by the shirtfront but stated that he did not slam or shove plaintiff into a locker. Defendant testified that he did recall plaintiff striking a locker but that this was possible but not as a result of a push by defendant. Defendant had never before met plaintiff but "assumed" that plaintiff was a student. The situation may have been that plaintiff fell against the lockers but defendant did not recall him coming into contact with the lockers. Defendant did grab plaintiff by the front of his shirt when the latter was walking toward his homeroom.
• 1 The issue here was whether defendant was guilty of a wilful and wanton assault upon plaintiff. This requirement has its origin in two identical portions of the School Code providing generally that teachers stand in the relationship of parents and guardians to the pupils. (See Ill. Rev. Stat. 1975, ch. 122, pars. 24-24, 34-84a.) Our supreme court has recently pointed out that these enactments actually confer upon teachers "the status of parent or guardian to the students." (Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 170, 347 N.E.2d 705.) It follows, therefore, that in the case before us in order to impose liability upon the defendants, plaintiff must prove wilful and wanton misconduct by defendant Meier. See also Gordon v. Oak Park School District No. 97 (1974), 24 Ill. App.3d 131, 134, 320 N.E.2d 389.
• 2 Carrying the matter one step forward, wilful and wanton conduct requires an intentional act or an act "`* * * committed under circumstances exhibiting a reckless disregard for the safety of others * * *.'" Klatt v. Commonwealth Edison Co. (1965), 33 Ill.2d 481, 488, 211 N.E.2d 720, quoting from Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293.
Applying these principles to the case before us, the evidence of the students is clear and definite to the effect that defendant, without reason or proper investigation, seized plaintiff forcibly and thrust him strongly against the steel lockers. This evidence is sufficient to support the general verdict of the jury against defendants and the special verdict finding defendant Norman Meier guilty of wilful and wanton conduct. In defendant's own testimony, he conceded that he had seized plaintiff by the shirt. He admitted that he did not know plaintiff and "assumed" that plaintiff was a student. As against the definite testimony of the four students, defendant answered only that he did not recall plaintiff striking the locker although it is possible that he did. In view of the factual strength of plaintiff's case, we conclude necessarily that the verdict and the answer to the special interrogatory are strongly supported by the evidence and that we may not substitute a different result from that reached by the jury. See Pennington v. McLean (1959), 16 Ill.2d 577, 585-86, 158 N.E.2d 624.
We will next consider the contentions of defendants directed at the instructions. Over objection by defendants, the court gave the jury an instruction based upon Illinois Pattern Jury Instructions, Civil, No. 50.01 (2d ed. 1971) (hereinafter cited as IPI Civil). This instruction told the jury that the defendant school was sued as principal and the teacher as agent. If the jury found the teacher liable, it must also find the school liable. However, if the jury found the teacher not liable, then the school also should be found not liable. Defendants urge that the school denied agency and therefore the trial court should have given IPI Civil No. 50.03. This instruction directs the jury to determine whether an agency existed and whether the agent was acting within the scope of his authority at the time.
• 3 The comments to these instructions differentiate between the two types of instructions and they do, as defendants contend, approve IPI Civil No. 50.03 where the existence of the agency has been denied so that its existence constitutes an issue for the jury. In the record before us, plaintiff alleged that the teacher was acting as an agent of the school in connection with plaintiff's injuries. In their answer, defendants admitted that the teacher was employed in that capacity by the school at the pertinent time and place. In his testimony, the teacher stated that he was engaged as a teacher at the school and had been associated in that capacity for some 24 or 25 years. Thus, his status as agent is admitted in the pleadings and proved in his own testimony. The instruction as given was therefore proper.
• 4 The court gave the jury an instruction upon the issues made by the pleadings. (Compare IPI Civil No. 20.01.01.) This instruction stated that plaintiff claimed he was injured by the wilful and wanton conduct of defendant Meier in pushing and shoving him into the lockers. Defendants object that this instruction fails to include the element that plaintiff was free from contributory wilful and wanton conduct. Defendants have overlooked the fact that at the close of all the evidence, the court granted plaintiff's motion for a directed verdict on the issue of plaintiff's freedom from wilful and wanton misconduct. This ruling by the trial court was, in our opinion, correct as a matter of law. There is no evidence in the record that plaintiff engaged in any wilful and wanton misconduct so as to precipitate the acts of the teacher regarding which plaintiff now complains. Accordingly the instruction eliminating this element from the issues made by the pleadings was in proper form. In addition, we note that no objection was raised by defendants to this instruction at the conference on instructions. Accordingly the issue has been waived. Delany v. Badame (1971), 49 Ill.2d 168, 178, 274 N.E.2d 353, cited in Migliore v. County of Winnebago (1974), 24 Ill. App.3d 799, 804, 321 N.E.2d 476.
• 5 The same instruction appears on its face to contain an error in that it states that defendants deny "that any claimed act on the part of the defendants was a proximate result of the claimed injuries." It is patently clear that the word "result" is erroneous and that the word "cause" should have been used. Defendants now claim that this is reversible error. Here also, no objection was made by defendants to this effect at the conference on instructions. If the error had been noticed prior to that time by counsel for defendants, he owed a duty to the court to direct the attention of the court to the error. In addition, the error appears in the typewritten instructions but the record does not show if the trial court corrected it in reading the instructions to the jury. In any event, we find that the court also gave IPI Civil No. 21.02, being burden of proof on the issues. It appears that this instruction advised the jury that plaintiff had the burden of proving that "the wilful and wanton conduct of the defendants was a proximate cause of the ...