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Turner v. City of Chicago

OPINION FILED DECEMBER 16, 1980.

CLAUDELL TURNER, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS. — (R.R. DONNELLEY & SONS CO., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding. MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Claudell Turner, appeals from a summary judgment entered by the circuit court of Cook County in favor of defendant, R.R. Donnelley & Sons Co. (hereinafter referred to as Donnelley), in an action for malicious prosecution. We consider whether the trial court erred in granting Donnelley's motion for summary judgment.

For reasons hereinafter set forth, we affirm.

Except where noted, the following factual allegations emerge from the pleadings and discovery depositions.

On the afternoon of December 24, 1972, Arnold Van Bergen, manager of Donnelley's plant security department, was informed that an employee had observed copper ingots being thrown from a window of one of Donnelley's buildings to the ground. After instructing the plant security officers "to keep out of sight and watch the pile of copper ingots," Van Bergen called the Chicago Police Department, and two police officers were dispatched to Donnelley's plant.

The police officers, the plant security officers and Van Bergen positioned themselves at different sites in the vicinity of the pile of copper ingots. Shortly before 6 p.m., Van Bergen saw an automobile approach and an individual exit therefrom. Van Bergen's vision of the individual as he walked away from the automobile was obstructed by the plant building. Subsequently the headlights of the police car were turned on and Van Bergen "saw the individual stop and just stand." Van Bergen, the plant security officers and the police officers ran toward the individual. Donnelley's security officers informed Van Bergen that when the headlights were turned on, the individual dropped two copper ingots. *fn1 Van Bergen further testified that he had observed two copper ingots approximately 15 to 20 feet away from where the individual was standing while he was questioned by Chicago police officers. Donnelley's security officers informed Van Bergen that the individual had moved away from the two ingots as the Chicago police officers approached him. The two copper ingots were situated approximately 80 to 100 feet away from the pile of ingots. In the presence of Van Bergen the police officers questioned the individual and ascertained that he was Claudell Turner, the plaintiff herein. *fn2

Turner testified at his discovery deposition that while en route from a friend's house to a tavern he had stopped at Donnelley's plant to urinate and to see a co-employee. It was while he was urinating that the headlights of the police car were turned on. Turner further testified at his discovery deposition that at no time during his arrest or immediately thereafter did he make any statement to the Chicago police, to Donnelley security officers or to Van Bergen concerning the incident.

Turner was then arrested and taken to the police station. At the request of police, Van Bergen executed a sworn complaint whereby Turner was charged with the felony theft of Donnelley's property. On March 21, 1973, a preliminary hearing was conducted and at the conclusion thereof the trial court entered a finding of probable cause. On April 24, 1973, the trial court entered an order holding Turner over pending action by the grand jury. In October 1973 the grand jury returned a "no true bill."

During the pendency of the grand jury proceedings, Officer Baker executed a complaint, based upon the same circumstances as the complaint executed by Van Bergen, charging Turner with misdemeanor theft, *fn3 and an arrest warrant was issued thereupon. Officer Baker testified at his discovery deposition that he had no recollection of the circumstances surrounding his execution of the complaint on May 8, 1973. Van Bergen testified at his discovery deposition that he was unaware that a second complaint charging Turner with theft had been executed. He had no recollection of any conversation with Officer Baker occurring after December 24, 1972.

On February 16, 1975, Turner, while operating his automobile, was stopped by police for a traffic violation. When the officer "ran" the customary criminal history "check" he discovered that there was an outstanding warrant for Turner's arrest. Turner was arrested and taken to the police station. While at the station Turner did not see any Donnelley employees or agents. At Turner's court appearance following this arrest, although both the police and the court attempted to secure the presence of an agent of Donnelley, no such agent was present. On March 13, 1975, the case was "stricken from the docket with leave to reinstate."

The summary judgment for Donnelley entered by the trial court is a salutary means of disposing of litigation in which there is no genuine factual dispute. (Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 44, 411 N.E.2d 229.) Section 57 of our Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)) authorizes summary judgment where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Our inquiry focuses, then, upon whether the pleadings in this case, together with the depositions, pose a genuine issue of material fact for, if they do, the trial court erred in its summary disposition. We believe, however, that they do not pose a genuine issue of material fact, and that the summary judgment entered by the trial court was proper.

Our supreme court has indicated that suits for malicious prosecution are not favored in the law. (Joiner v. Benton Community Bank, at 44-45.)

"Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused. It was for the purpose of encouraging and protecting those who exercise their constitutional right to appeal to our courts> for redress of private or public grievances that the circumstances in which malicious prosecution actions may be brought have been rather narrowly circumscribed."

• 1 The essential elements of the action of malicious prosecution are (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice on the part of defendant; and (5) damages resulting to the plaintiff. (Joiner v. Benton Community Bank, at 45; Ritchey v. Maksin (1978), 71 Ill.2d 470, 475, 376 N.E.2d 991.) "If the absence of one or more of these essential elements has been established to the point that it may fairly be said that no genuine issue of fact as to its absence exists, summary judgment was appropriate." Joiner v. Benton Community Bank, at 45.

The want of probable cause for instituting proceedings is the basis for a malicious prosecution action (Israel v. Brooks (1860), 23 Ill. 526; Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App.3d 110, 116, 367 N.E.2d 203), and it has been held an indispensable element of the cause of action (Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill.2d 291, 295, 211 N.E.2d 286; Mangus v. Cock Robin Ice Cream Co., at 116.) If it appears that there was probable cause to institute the proceedings, such fact alone constitutes an ...


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