Appeal from the Circuit Court of Cook County; the Hon. James
E. Sullivan, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 9, 1987.
Defendant, Allstate Insurance Company, appeals from a jury verdict entered in favor of the plaintiff, Jimmy Denton, in the amount of $185,000. The jury found defendant liable for malicious prosecution and awarded plaintiff $45,000 in compensatory damages and $140,000 in punitive damages.
In December 1977, Officer Victor Delia of the Chicago police department was assigned a warrant for plaintiff's arrest for nonpayment of multiple parking tickets. Delia performed a routine computer search and found a second outstanding warrant for plaintiff's arrest. The second warrant had been issued in April 1976 on a criminal complaint accusing plaintiff of the attempted theft of more than $150 from defendant. On December 27, 1977, plaintiff was arrested on both warrants. Unable to post bond, he spent the night in jail and was released the following morning on a recognizance bond. He subsequently appeared in court three times on the attempted-theft charge. The case was continued twice and, on February 21, 1978, the charge was stricken on the State's motion without a trial.
On April 7, 1978, plaintiff filed an action for malicious prosecution against defendant. Before the selection of the jury, plaintiff made a motion in limine to exclude from the jury all evidence relating to the multiple-parking-ticket warrant. The trial court sustained this motion. In June 1983, the case was tried before a jury, which returned verdicts in plaintiff's favor. Defendant's post-trial motion was denied, and defendant appeals. The issues presented for review are: (1) whether as a matter of law defendant can be found liable for malicious prosecution; (2) whether the trial court erred in submitting the issue of punitive damages to the jury; (3) whether the jury's verdict was contrary to the manifest weight of the evidence; (4) whether the trial court erred in excluding certain evidence offered by defendant and admitting certain evidence offered by plaintiff; (5) whether the trial court erred by improperly instructing the jury; (6) whether the trial court erred by withholding defendant's exhibits from the jury while permitting plaintiff's photographic exhibits to be taken to the jury room; (7) whether a new trial is required because of remarks made by plaintiff's counsel in closing arguments; (8) whether the cumulative effect of the trial court's errors prejudiced defendant and denied it a fair trial, and (9) whether, if a new trial is not granted unconditionally, this court should enter an order compelling a remittitur because of an excessive damage award.
• 1 Defendant first argues that the evidence presented at trial was insufficient as a matter of law to support the verdict. It therefore asks this court to vacate the jury verdict and enter judgment in its favor. Alternatively, defendant asserts that a new trial is warranted because the verdict was against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence only if it is wholly unwarranted by the evidence or clearly the result of passion or prejudice. (Ogg v. City of Springfield (1984), 121 Ill. App.3d 25, 458 N.E.2d 1331.) The relevant inquiry on appeal is whether the result reached is reasonable on the facts and evidence presented, not whether other conclusions are possible. Nunley v. Village of Cahokia (1983), 115 Ill. App.3d 208, 450 N.E.2d 363.
Plaintiff testified that on March 30, 1976, he went to one of defendant's offices with a friend to purchase automobile insurance. According to plaintiff, Louis Dodd, defendant's agent, completed the form and wrote in the binder section of the application that plaintiff was insured as of March 30, 1976, at 11 a.m. Plaintiff testified that the following day he went out of town, leaving his car parked behind his apartment building. When he returned on April 3, he discovered that his car was missing.
At 8 a.m. on April 3, plaintiff phoned the police and reported the car stolen. The theft report indicated that the car had been taken between 11 p.m. on April 2 and 7 a.m. on April 3. A Chicago police recovery report revealed, however, that the car had been recovered by the police at 5 a.m. on April 1. The ignition was removed, the battery was missing, the tires were switched, and there were minor dents and scratches. On April 7, Officer Daniel Chilla, an investigator with the Chicago police department, began an investigation of the auto-theft report. Chilla testified that he telephoned plaintiff to ask for his explanation of why the car was reported stolen after it already had been recovered. Plaintiff was unable to provide the officer with an explanation regarding the discrepancy. At trial, plaintiff denied ever speaking to Chilla. Nevertheless, Chilla testified that he subsequently phoned Louis Dodd to ask if he had any information that might help him with the case. Dodd told him that his records indicated that plaintiff was insured as of 9 a.m. on April 1, 1976. Chilla then called one of defendant's claims agents and advised him of the facts known to him at that time. Chilla stated that the agent told him that the situation sounded like a fraud, and defendant would cooperate with the police department in the investigation. The claims agent indicated that, because of the circumstances, defendant would delay payment of plaintiff's claim.
On April 27, 1976, Chilla spoke to an assistant State's Attorney about the matter and was given approval to obtain a warrant for plaintiff's arrest. Officer Chilla swore out and signed a criminal complaint against plaintiff for attempted theft of over $150 from defendant. He obtained a warrant for plaintiff's arrest. Chilla informed plaintiff's attorney that he had obtained a warrant, but the attorney was unable to persuade plaintiff to turn himself in. The police were unable to find plaintiff to arrest him and ultimately suspended their search.
When plaintiff called defendant on April 3, 1976, to inform it of the theft of his car, he gave a recorded statement over the phone regarding the details of the incident. He later received a call informing him that the car had been recovered and went to see the car. After he identified the car as his, plaintiff contacted agent Dodd. Dodd subsequently referred plaintiff to John Byrne, claims manager, who told plaintiff that his claim would not be honored because of some question as to when plaintiff purchased the automobile insurance. Although plaintiff's copy of the insurance form indicated that the insurance was binding as of March 30, defendant's records showed that plaintiff purchased the insurance on April 1, 1976. Plaintiff filed a complaint with the Illinois Department of Insurance.
On April 20, defendant received a copy of a complaint which plaintiff had filed with the Department of Insurance. It continued to investigate the claim. After learning that plaintiff's prior insurance had been cancelled and that the Chicago police department had recovered the car four hours before the date and time of the application as shown in defendant's records, defendant decided to disclaim coverage. The letter of disclaimer was mailed to plaintiff on April 23. Plaintiff went to defendant's office on that same day and showed an agent his copy of the insurance application which showed an effective date of March 30. A copy was sent to the claims manager, who then scheduled an appointment with plaintiff for April 28. On that date, plaintiff went to one of defendant's offices and gave the claims manager two written statements and a total-theft affidavit. Defendant eventually settled the matter with plaintiff and paid his disputed claim in full. In return, plaintiff released defendant from all claims relating to his loss. On June 16, 1976, defendant closed its file on plaintiff's claim. The testimony at trial indicated that, in August or September 1976, defendant informed the police that plaintiff's claim had been paid in full. Plaintiff subsequently filed his malicious prosecution action against defendant.
• 2 In order to state a cause of action for malicious prosecution, a plaintiff must demonstrate that the following elements exist: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was the defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such a proceeding; (5) the presence of malice, and (6) damages resulting to plaintiff. (Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill.2d 291, 211 N.E.2d 286.) Defendant contends that plaintiff failed to prove legal causation, absence of probable cause, malice, and damages. Defendant also complains that, in urging liability for any false information given regardless of knowledge or intent, plaintiff is seeking to convert the intentional tort of malicious prosecution into a strict liability case. We find defendant's arguments persuasive.
• 3 Illinois law provides that, in order to be liable for malicious prosecution, a defendant either must have initiated a criminal proceeding or his participation in it must have been of so active and positive a character as to amount to advice and cooperation. (De Correvant v. Lohman (1967), 84 Ill. App.2d 221, 228, 228 N.E.2d 592.) In addition, the attribution of police action to a defendant requires that the defendant requested, directed or pressured an officer into swearing out a complaint for plaintiff's arrest, or that defendants knowingly gave false information to the police. Geisberger v. Vella (1978), 62 Ill. App.3d 941, 379 N.E.2d 947.
Plaintiff contends that, nevertheless, even if defendant was not responsible for the institution of criminal proceedings, it was responsible for their continuation and therefore is liable. (Friedes v. Sani-Mode Manufacturing Co. (1965), 33 Ill.2d 291, 295, 211 N.E.2d 286.) In support of his position, plaintiff cites Devlin v. Greiner (1977), 147 N.J. Super. 446, 471, 371 A.2d 380, 394, in which the court stated: "One who, without probable cause, advises or assists another person to begin a proceeding, should not be exempted from liability simply because his name does not ...