APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, Marjorie Bentley, filed a two-count complaint charging false arrest and malicious prosecution against the city of Chicago and Francis W. Harsey, the arresting officer. Following trial, a jury returned a verdict for defendants. The circuit court subsequently granted plaintiff's post-trial motion for a new trial. We granted leave to appeal from the order granting a new trial under Supreme Court Rule 306 (Ill. Rev. Stat. 1977, ch. 110A, par. 306).
Officer Francis W. Harsey, a traffic investigator for the Chicago Police Department, was examined under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). He testified that on December 1, 1972, he received a radio assignment to make an accident investigation at Mt. Sinai Hospital. He arrived at the hospital emergency room shortly after 10 p.m. and met Bentley and her three children. Bentley said that she had called the police and wanted and accident report completed concerning a CTA bus accident. Her three children were on that bus in the morning on their way to school. Plaintiff was not on the bus.
Harsey had received police training in the law of arrest. He believed that he could not question a minor outside the presence of the child's parents without permission. Harsey further testified that according to Bentley her three children were injured in the accident. Harsey asked Bentley if he could interview her children and she said no. He explained that to make an accurate investigation he needed to interview the children, but plaintiff still declined.
Officer Harsey made an attempt to interview the children and Bentley became very indignant, used profanity and started "thumping" him on his chest with her fingers. Harsey made several attempts to interview the children, but Bentley stopped him. Further pertinent testimony by Harsey follows:
"Q. Is it a fact that you attempted to interview one of the children and exclude Mrs. Bentley from the room?
A. No, I did not; not at that time.
Q. Did you ever tell her to get out of the room?
Q. Did she get out of the room?
A. She told me she was going to call her lawyer. Yes, she did leave.
Q. When she told you she was going to call her lawyer, what did you do then?
A. I asked one of the children what happened.
Q. You did interview the children without ...