APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
FIEDLER, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 29, 1978.
Plaintiff filed an action to recover damages occasioned by the alleged tortious conduct of defendant, F.W. Woolworth Co. Plaintiff alleged defendant committed the following torts: assault and battery, false imprisonment, malicious prosecution, and a violation of plaintiff's civil rights under 42 U.S.C. § 1983. The jury returned a verdict in favor of defendant, F.W. Woolworth Co., on all counts. Plaintiff appeals.
The issues presented for review are (1) whether the court committed the following alleged errors which denied plaintiff a fair trial: the court improperly granted defendant's motion for a mistrial before a jury was impaneled; *fn1 the court refused to poll the jury; the court improperly struck the testimony of a witness; the court made improper remarks to the jury; (2) whether the court erred by allowing defendant's counsel to use allegedly unfair tactics during cross-examination; (3) whether the court's refusal to give instructions tendered by plaintiff caused the jury to be inadequately instructed; and (4) whether the jury's verdict was against the manifest weight of the evidence.
Mr. Papageorgiou (plaintiff) and his wife both testified to the following facts: As the Papageorgious were about to enter the store of defendant, F.W. Woolworth Co., on December 2, 1967, *fn2 they observed three small children striking the front windows of the store with chains. Plaintiff told the children to stop hitting the windows and then he and his wife proceeded into defendant's store. While in the basement of the store they saw a security guard (Hampton) accusing three children of stealing chains. They were the same children plaintiff previously observed standing outside the store. Plaintiff attempted to tell the guard that the boys didn't steal the chains, but the guard allegedly became belligerent, telling plaintiff to mind his own business. Plaintiff and his wife left the basement and went upstairs to resume their shopping. Plaintiff testified that while shopping on the first floor he heard someone in a loud voice ask, "Is that the man," and then plaintiff was struck by Hampton. While trying to defend himself, plaintiff allegedly was struck with chains and then severely beaten by Hampton and two other guards, Compton and Ranucci. Plaintiff was then allegedly maced and dragged into an elevator and taken upstairs to a security office where he was handcuffed to a chair to await the arrival of police. Plaintiff's wife testified that when the Chicago police arrived, one of the guards told her that he didn't know why they were holding plaintiff, "but we'll think of something." Plaintiff's wife also testified that she told Hampton she thought the incident occurred because the security guards were black and the Papageorgious were white.
A Chicago police officer, Lieutenant Drammis, testified that on December 2, 1967, he responded to an assignment to proceed to the Woolworth store on State Street to pick up a prisoner. When the lieutenant arrived at the security office, he found plaintiff had been maced and was handcuffed to a chair. One of the security guards told Lieutenant Drammis that plaintiff had interfered with Hampton's attempt to arrest some juveniles.
Lieutenant Drammis testified that plaintiff was taken to the First District Police station and charged with disorderly conduct. While at the station plaintiff removed his shirt, and Lieutenant Drammis observed red marks on plaintiff's back, shoulder and arm. Lieutenant Drammis testified that he wrote and filed a police report on December 2, 1967, about the Woolworth incident. When asked if he knew why certain words were deleted from the report, the lieutenant testified that he deleted certain "non-essential words" after the charges against plaintiff were dropped.
Mrs. Papageorgiou testified that prior to the incident occurring at the Woolworth store on December 2, her husband was in very good physical health and was working two full-time jobs. *fn3 On cross-examination she stated that she didn't remember whether her husband had taken a three-month leave of absence from one of his jobs in September 1967. Plaintiff's wife testified that she took three photographs of plaintiff's back on the morning of December 3, 1967, but the photographs were now faded and do not show the extent of his injuries.
Plaintiff testified that he had worked two full-time jobs before December 2, 1967, but was unable to do so after the occurrence at Woolworth's due to the pain he was experiencing. He admitted "his back gave out" three weeks after the incident at Woolworth's while lifting a roll of paper during work at ICX Corp., but he attributed the major cause of his back problems to the incident at Woolworth's. Plaintiff stated that he never received Workmen's Compensation for any injury occurring at work, but that he did receive "sick benefits" from both his employers whenever he was unable to work due to his back injury. Plaintiff acknowledged that on December 2, 1967, he was on leave of absence from Chicago & Western Indiana R. & R. Co. and was not scheduled to return before December 18, 1967. Plaintiff stated that after the occurrence at Woolworth's, he was treated by a Dr. Cheronis, but he could not now locate the doctor.
Dr. Arenson, staff doctor at the Kildare Clinic, testified for defendant that his clinic took X rays of plaintiff's back in May 1969. The doctor stated that "Mr. Papageorgiou's X rays revealed a minimal amount of osteoarthritis in the lumbar vertebrae in the back." Dr. Arenson explained that osteoarthritis is a bony growth that is caused by stress and strain, and it is not unusual to find a minimal amount of osteoarthritis in a person plaintiff's age whose employment requires some heavy lifting. The doctor stated that plaintiff's X rays showed no apparent back injury, but that X rays may not always show some injuries.
Dr. Arenson further testified that his records indicate plaintiff was treated at the Kildare Clinic in early 1968. The clinic's records reflect plaintiff complained of pain due to an injury caused by pushing a roll of paper at work on December 30, 1967, and that plaintiff did not mention any prior injury to his back.
Ollie Compton testified to the following facts: Compton was employed as a deputy sheriff on December 2, 1967, and also worked part time as a security guard for Woolworth's on State Street. On Saturday, December 2, Compton was working at the Woolworth store and was assigned to watch the first floor. Compton saw a security guard, followed by three juveniles and the Papageorgious, come up the escalator from the basement of the store. Compton saw the guard (Hampton) turn around as plaintiff touched Hampton on the shoulder. As Hampton turned to face plaintiff, plaintiff hit Hampton and knocked him down. Compton testified that he attempted to aid Hampton, but that neither he nor the other two guards struck plaintiff; that "Papageorgiou was doing all the swinging in an effort to hit Hampton." Compton stated that he was a lieutenant and then a captain with the sheriff's office, and he now works with the State's Attorney's investigative section.
Mr. Crow, the manager of personnel for the Chicago and Western Indiana R. & R. Co., testified that plaintiff took a 90-day leave of absence in September 1967 and returned to work on December 18, 1967. Plaintiff worked every day from December 18, 1967, to February 9, 1968, excluding weekends, and he never reported suffering any injury. On February 9 ...