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Ely v. National Super Markets





Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.


Rehearing denied December 4, 1986.

Plaintiff filed suit for slander and malicious prosecution. The jury awarded plaintiff $20,000 on the slander claim, $150,000 on the malicious-prosecution claim, and punitive damages of $80,000 for malicious prosecution. Defendants appeal.

On December 29, 1982, plaintiff was detained for shoplifting a $3.79 bottle of Dexatrim diet pills at the National Super Market at 709 West Jefferson, Springfield. She was a cashier employed by defendant National Super Markets, Inc. (National), but had finished her shift and had gone grocery shopping prior to leaving. While being questioned regarding the bottle of diet pills, she was asked about rumors heard by management that she had illegally taken things at other times. She was subsequently tried and acquitted of committing retail theft under section 16A-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3). She filed a two-count complaint alleging slander in count I and malicious prosecution in count II. Although the parties differ significantly in their respective versions of the facts, certain facts are undisputed. Because we find the undisputed facts determinative in our holdings, we need not recite all the background details found in the record.

On December 29, 1982, plaintiff ended her shift at work at 8:30 p.m. and proceeded to grocery shop. As she approached aisle 12, plaintiff remembered seeing the store detective standing in the glassed-in area of the pharmacy. She picked up a package of diet pills from the pharmacy area, although she had never purchased diet pills before. She stated that she put the pills in the front part of her cart where a baby would sit. She then went to the checkout lanes. As she was standing in line, she put the pills in her purse because she did not want her friends who were working as cashiers making fun of her for buying diet pills. She also did not want her husband to know about the pills. According to plaintiff, the store did not have a policy which required that every item be physically given to the cashier. She remembered seeing the store detective watch her check her groceries out. Plaintiff testified that she told the cashier, Bonnie Marconi, to ring "$3.79 Kare." Kare was the code for health and beauty items. Plaintiff stated that her purse was on the checkwriting platform and that her total bill was over $50.00. She paid in cash, which she produced from her purse.

Bob Fitzsimmons, the store detective, testified to watching plaintiff take a bottle of diet pills from the pharmacy area and carry them outside of the cart to the next aisle, aisle 11. He followed her, being careful not to be seen. He stated that she put the pills in her purse, zipping them inside. She then proceeded to the checkout lanes. Fitzsimmons followed her and watched her check out her groceries for a short period. He went to report what he had seen to the associate manager, James Cripe, and returned to watch plaintiff finish checking out her groceries. Before he followed plaintiff outside to the parking lot, he asked Marconi if she recalled ringing up diet pills. She said she did not. Fitzsimmons proceeded to the parking lot and confronted plaintiff regarding the pills. Fitzsimmons testified that plaintiff produced her receipt and he checked it for an item listed as $3.79 Kare. He found no such item listed. Plaintiff testified that neither Fitzsimmons nor anyone else looked at the receipt at the store that night. She never thought to check the receipt herself that evening or during the next few days because of the anxiety and stress produced by her arrest. The receipt was lost and probably discarded.

Fitzsimmons brought plaintiff back to the manager's office, where Cripe questioned her. During the conversation, plaintiff stated to Cripe that she had told Marconi to ring the pills through the register. Marconi was summoned and asked whether she recalled plaintiff asking her to ring "$3.79 Kare." She said no. Cripe made several phone calls to Fred Hillebrandt, the store's manager, that evening regarding the matter of plaintiff's alleged theft of diet pills. During one of the phone calls, Hillebrandt brought up a rumor regarding plaintiff stealing items from the store in the past. Hillebrandt testified that he told Cripe to ask her about the rumor since she was already being detained for theft. Cripe testified that he could not recall Hillebrandt's exact statement to him, nor could he recall his statement to plaintiff. Plaintiff testified that Cripe's statement to her was as follows: "[Hillebrandt] had it from reliable sources that they've seen [plaintiff] taking things and to go ahead and treat [her] as though [she] was a regular customer." This statement forms the basis for the slander claim. Plaintiff stated that Marconi was still present when Cripe made the statement. Although Marconi testified at trial, neither counsel asked her whether she was present.

Plaintiff was arrested and tried on a charge of retail theft under section 16A-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3). She was acquitted. She was also discharged from her job. Plaintiff testified to the humiliation she felt about being arrested and tried.

Three days prior to the start of the trial, defendants filed a "first amended answer" which added an affirmative defense. Defendants added as an affirmative defense to both the slander and malicious-prosecution claims that plaintiff was estopped from bringing the causes of action because the issues raised had been brought through arbitration as provided by a collective-bargaining agreement applicable to plaintiff. The agreement was not attached.

On October 21, 1985, the first day of trial, plaintiff filed a "motion to strike and answer to affirmative defense." The motion to strike stated that defendants failed to attach the collective-bargaining agreement as required by section 2-606 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-606). Also filed by plaintiff on that day was a "motion in limine" to prohibit defendants from "presenting evidence, argument or comment to the jury, * * * concerning the filing of or the outcome of any labor union arbitration proceedings arising out of the discharge of the plaintiff." The court granted plaintiff's motion to strike affirmative defense and motion in limine.

During the trial, defense counsel made an offer of proof regarding the evidence of the arbitrator's decision. The arbitrator had found that National made a clear and convincing case for discharging plaintiff and that plaintiff did not intend to purchase the pills when she left the store. The record is not clear what ruling the court eventually made. However, it does not appear that the evidence was submitted to the jury.

Plaintiff sued three defendants. The jury found for James Cripe, the assistant manager on both claims. Damages of $20,000 were assessed against Hillebrandt and National on the slander claim. On the malicious-prosecution claim, the jury assessed $150,000 against Hillebrandt and National. The jury further assessed punitive damages of $20,000 against Hillebrandt and $60,000 against National on the malicious-prosecution claim.

The court denied defendants' motions for a directed verdict during trial as well as the post-trial motion for entry of judgment. Defendants filed a timely appeal.

On appeal defendants raised arguments for 16 alleged errors. The errors tend to overlap one another, and our initial holdings make the need to answer all 16 unnecessary. We outline this opinion as follows: (1) whether a directed verdict should have been issued on the malicious-prosecution claim, (2) whether the evidence of the arbitration proceedings should have been admitted, (3) whether a directed verdict should have been issued on the slander claim, (4) whether the court erred in accepting plaintiff's jury instructions, and (5) whether the jury verdict was excessive. We begin with the claim of malicious prosecution.

• 1, 2 The elements of malicious prosecution are (1) the commencement or continuation 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 the defendant; and (5) damages resulting to the plaintiff. (Turner v. City of Chicago (1980), 91 Ill. App.3d 931, 415 N.E.2d 481.) Probable cause is defined as "a state of facts, in the mind of the prosecutor, as would lead a man of ordinary caution and prudence to believe or entertain an honest and sound suspicion that the person accused is guilty of the offense charged." (Carbaugh v. Peat (1963), 40 Ill. App.2d 37, 47, 189 N.E.2d 14, 19.) The existence of probable cause acts as a complete defense to an action for malicious prosecution, no matter what ill motive prompted the prosecution. (Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App.3d 110, 367 N.E.2d 203; Horvat v. Opas (1942), 315 Ill. App. 229, 42 N.E.2d 867.) It is not necessary to verify the correctness of each item of information so obtained; it is sufficient to act with reasonable prudence and caution in so proceeding. (Turner v. City of Chicago (1980), 91 Ill. App.3d 931, 415 N.E.2d 481; Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App.3d 110, 367 N.E.2d 203.) "The question of probable cause as an element of the cause of action for malicious prosecution is a mixed question of law and fact. Whether the circumstances proved to show probable cause are true is a question of fact, but, if true, whether they amount to probable cause is a question of law to be decided by the court." (25 Ill. L. & Prac. Malicious Prosecution sec. 42 (1956); Angelo v. Faul ...

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