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Walker v. Dominick's Finer Foods

OPINION FILED DECEMBER 31, 1980.

GENE WALKER, PLAINTIFF-APPELLEE,

v.

DOMINICK'S FINER FOODS, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID CERDA, Judge, presiding.

MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 3, 1981.

This is a personal injury action in which plaintiff, Gene Walker, claims he was injured as a result of a wilful and wanton assault and battery committed by an employee of defendant, Dominick's Finer Foods, Inc. A jury returned a general verdict in favor of plaintiff in the amount of $8,000. The jury also answered a special interrogatory finding plaintiff guilty of provocation which was a proximate cause of the injury. Judgment was entered on the answer to the special interrogatory in favor of defendant. In ruling on plaintiff's post-trial motion, the trial court vacated the judgment and entered judgment on the general verdict. We reverse and remand for a new trial.

On March 4, 1972, plaintiff was delivering produce to a Dominick's store at 30th and Halsted Streets in Chicago, Illinois. According to plaintiff, he entered the store and shouted, "Produce." The store manager, Frank Caruso, went over to plaintiff, and plaintiff told Caruso that he was shouting "Produce" in order to attract the attention of one of the employees. He said that he wanted the area cleaned up so that he could unload his produce. Plaintiff claims he went to step around Caruso, and Caruso "stepped sort of in front of" him. Plaintiff stated that he had turned around to see if the area was clear, and he could have struck Caruso as he turned. Plaintiff lost his balance, slipping on some boxes or crates, and grabbed Caruso as he was falling. Plaintiff testified that after he fell, Caruso "came down on top" of him and was punching him in the face. Plaintiff was then attempting to hit Caruso, but at the same time he was trying to get back on his feet. Some of Dominick's other employees then pulled the two men apart. As a result of the incident, plaintiff suffered a fractured nose and had contusions and abrasions on his face.

A witness stated that plaintiff was swearing while in the back of the Dominick's store because he wanted to unload his truck. Caruso tried to quiet plaintiff because there was a lady in the room. Plaintiff continued to swear, and he started "walking into" Caruso. According to this witness, plaintiff tried to punch Caruso and missed, so Caruso "swung back" and hit plaintiff. After both men fell to the ground, Caruso hit plaintiff again. Plaintiff stood up and pulled out a knife or a shiny object. Caruso then ran from the room.

Another witness also testified that plaintiff was swearing while in the back of the store. This witness stated that plaintiff walked up to Caruso, and Caruso backed off a little. Plaintiff continued walking, "just bumping into [Caruso] with his chest." According to this witness, plaintiff then swung at Caruso, but Caruso blocked the punch and hit plaintiff. The two men fell to the floor. After some people pulled Caruso off plaintiff, plaintiff pulled out a knife.

We first consider defendant's argument that the answer to the special interrogatory finding plaintiff guilty of provocation was inconsistent with the general verdict, and therefore, judgment should have been entered on the answer to the special interrogatory. We conclude that the special interrogatory was improper, and therefore, the answer was a nullity.

• 1 The special interrogatory reads:

"Before and at the time of the occurrence, was the plaintiff guilty of any provocation which was a proximate cause of the injury?"

In order for a special interrogatory to be proper, it must relate to one of the ultimate issues in the case. (Eichorn v. Olson (1975), 32 Ill. App.3d 587, 594, 335 N.E.2d 774, 778-79; Le Flore v. Chicago Transit Authority (1973), 12 Ill. App.3d 71, 74, 297 N.E.2d 758, 760.) Here, the special interrogatory does not relate to an ultimate issue since provocation is not a justification for or a complete defense to an assault and battery action. (See generally 6A C.J.S. Assault and Battery § 18 (1975).) In an action for assault and battery, provocation would not defeat the action except to the extent that it may be involved in the issue of self-defense. Thus, in the present case, self-defense would have been the proper defense to raise, rather than provocation, and self-defense would be an ultimate issue. Cf. Willhite v. Goodman (1978), 64 Ill. App.3d 273, 275, 381 N.E.2d 68, 69-70; see generally Prosser, Torts § 19 (4th ed. 1971).

• 2 The answer to the special interrogatory is a nullity for another reason. The jury instruction defining provocation states:

"Provocation is defined as an act or instance of provoking an act or inciting anger, irritation, or annoyance."

As defined in the instruction, provocation could include mere words, but mere words would not justify Caruso's resort to force. (Willhite, 64 Ill. App.3d 273, 275, 381 N.E.2d 68, 69; Donnelly v. Harris (1866), 41 Ill. 126, 128.) Therefore, the affirmative answer to the special interrogatory is not solely determinative of this case and it must be considered a nullity.

• 3 We next consider whether the trial court erred in refusing to instruct the jury with respect to plaintiff's alleged duty to be free from contributory wilful and wanton conduct. We agree with the trial judge on this point. Since this case involves assault and battery, which are intentional torts, freedom from contributory wilful and wanton conduct is not an element for the cause of action and is therefore not an issue in the case. The significance of the fact that this case involves ...


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