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06/30/87 First Security Bank of v. First Security Bank of

June 30, 1987

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION VOY E. MACK, PLAINTIFF-APPELLANT

v.

FIRST SECURITY BANK OF CHICAGO, DEFENDANT-APPELLEE



511 N.E.2d 714, 158 Ill. App. 3d 497, 110 Ill. Dec. 537 1987.IL.932

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON and JIGANTI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff Voy E. Mack (Mack) was charged with and tried for forgery and theft in criminal proceedings which were instituted on the complaint of defendant First Security Bank of Chicago (bank). Upon her acquittal of the criminal charges, she brought this action against defendant bank for malicious prosecution. At the close of Mack's case in the malicious prosecution action, the trial court found that Mack had failed to present any evidence of malice in connection with the bank's institution of the criminal proceedings, and the trial court granted the bank's motion for directed verdict. Mack appeals from the trial court's entry of a directed verdict in favor of the bank and from the trial court's denial of Mack's motion for a new trial. Mack raises two issues on appeal: (1) whether the trial court's entry of a directed verdict should be reversed; (2) whether the trial court's refusal to admit evidence of the bank employee's racial views was prejudicial error. We reverse and remand.

Background

Mack's complaint for malicious prosecution alleged that the bank or its agents initiated her prosecution out of improper motives. The complaint specifies: (1) that the bank was prejudiced against her because she was black, (2) that the bank was seeking to recover the financial loss it sustained when it accepted forged and insufficient funds checks, and (3) that by prosecuting her the bank was diverting suspicion of complicity by its own employees. Before the tort went to trial, the trial court granted the bank's motion in limine to preclude Mack from eliciting testimony regarding or alluding to her race and the bank employee's expressed opinions about blacks.

The evidence produced at trial by plaintiff established the following: In 1978, Mack opened both a checking account and a savings account at the bank. During October 1978, an assistant vice-president of the bank, Vic Zezelic (Zezelic), told Kathy Ruppert (Ruppert), a teller at the bank, that deposits made at her window into a certain account in September were made with checks bearing forged signatures or which were drawn on accounts with insufficient funds. On October 30, 1978, Ruppert saw Mack in the bank and believed that it was Mack who had cashed a check bearing a forged endorsement at her window and who had deposited an insufficient funds check into the account which Zezelic mentioned to her. After Mack completed her transaction at another teller's window and left the bank, Ruppert went to that window, looked at Mack's transaction slip, and saw Mack's name. She told Zezelic that Mack was the woman who had deposited or cashed two forged or insufficient funds checks in September.

The evidence also disclosed that Zezelic called the police after Ruppert identified Mack as the woman who deposited the forged or insufficient funds checks. Ruppert went with a police officer to the office of Mack's employer and identified Mack's photograph from a collection of six or eight photographs of women. Zezelic looked at Mack's signature card and her new account sheet, but he did not have a handwriting expert compare and verify that it was Mack's handwriting on the forged checks nor did he call Mack in for an interview or in any way question her. The bank sustained a loss of $1,810 as a result of the fraudulent transactions, a loss not covered by the bank's insurance. Zezelic also testified that Ruppert told him, prior to the time he signed the criminal complaint, that she identified Mack by "the eyelashes, the eye make-up and also the color of the hair." His testimony further indicated that, at the time he signed the complaint, he knew that only Ruppert's uncorroborated identification implicated Mack.

Ruppert testified in the criminal and civil proceedings that she remembered Mack's September transaction because Mack made a large deposit and it was unusual for the bank's minority clientele to make large deposits; that in Ruppert's opinion, they usually would deposit $5 into their accounts and take the balance of their checks in cash. At both the preliminary hearing and at the criminal trial, Ruppert identified Mack as the person who presented the insufficient funds or forged checks to the bank.

Mack was acquitted in a bench trial of all criminal charges brought by the bank.

At the close of the plaintiff's case in the malicious prosecution action, the bank moved for a directed verdict. The court found that although Mack had presented enough evidence of the bank's lack of probable cause to institute the criminal proceedings to submit that issue to the jury hearing the malicious prosecution action, Mack presented no evidence of the bank's malice in instituting the criminal proceedings. The trial court then granted the motion and directed a verdict for the bank. Mack filed a motion for a new trial. After the trial court denied her motion, Mack timely filed this appeal.

Opinion

Mack argues that the trial court erred in directing a verdict for the bank. Mack contends that in ruling on a motion for directed verdict the trial court must draw all reasonable inferences in favor of the litigant opposing the motion, and that the malicious prosecution trial jury might permissibly infer malice if the jury were to find that the bank lacked probable cause to institute the criminal action. Based on these propositions and on the trial court's finding that there existed a jury question regarding ...


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