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03/22/89 Jean Deal, v. William Byford Et Al.

March 22, 1989





537 N.E.2d 267, 127 Ill. 2d 192, 130 Ill. Dec. 200 1989.IL.379

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Carl F. Henninger, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case. JUSTICE RYAN, Concurring in part and Dissenting in part. JUSTICE WARD joins in this partial concurrence and partial Dissent.


The plaintiff, Jean Deal, brought this action in the circuit court of Du Page County to recover damages for personal injuries she sustained in an attack on her by defendant William Byford, an agent and employee of defendant SRP Associates. Following a jury trial, the circuit Judge entered judgment on verdicts awarding the plaintiff $1,275 in compensatory damages and $25,000 in punitive damages. The appellate court affirmed the judgment of the circuit court in an unpublished order. (151 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).) We allowed the defendants' petition for leave to appeal (107 Ill. 2d R. 315(a)), which purported to present for review a question involving contributory willful and wanton misconduct, punitive damages, and comparative fault. The defendants' procedural defaults in the circuit court resulted in the waiver of the issue for purposes of review, however, and, without reaching the merits of that contention, we now affirm the judgment of the appellate court.

The present appeal arises from an occurrence at an apartment complex in Addison on September 1, 1984. On that day defendant William Byford attempted to inspect the apartment being vacated by plaintiff Jean Deal and her family. An argument ensued, and Byford struck Mrs. Deal on her head and in her face, injuring her. On December 13, 1984, the plaintiff filed a five-count complaint against Byford and his employer, SRP Associates, owner of the apartment complex. Count I of the complaint was directed against Byford and alleged that he acted intentionally and willfully, and in the scope of his employment as an agent of SRP Associates, in striking the plaintiff. Counts II, III, and IV of the complaint were directed against SRP Associates. Count II sought recovery under a respondeat superior theory from SRP Associates as Byford's employer. Counts III and IV alleged that SRP was negligent in employing and retaining Byford as its manager and agent, and in failing to supervise and control him. A fifth count, brought by the plaintiff on behalf of her minor daughter, was dismissed by the plaintiff at the close of evidence at trial and is not involved in this appeal. Each count of the complaint requested both compensatory and punitive damages.

On January 8, 1985, William Byford was served with summons. After failing to obtain service of process on defendant SRP Associates and its managing partner, Masood Mazhar, the plaintiff served a second alias summons on May 10, 1985, on William Byford's wife, Terri, who was also alleged to be an agent and manager of SRP Associates.

On February 7, 1985, William Byford, acting "individually and as agent for SRP Associates," filed a verified answer to the plaintiff's complaint. The answer responded to all five counts of the complaint and admitted that Byford was an agent of SRP Associates and that he was acting within the scope of his employment on the day of the altercation. Also on February 7, 1985, attorney Theodore Voska entered his appearance on behalf of both Byford and SRP Associates and filed a demand for a jury trial. Whether SRP authorized Voska's appearance on its behalf before it was served does not appear of record.

Trial commenced on February 19, 1986. The evidence presented at trial indicated that the plaintiff and her family, pursuant to an agreed order, were to vacate their apartment by August 31, 1984. The plaintiff testified that around 8:30 a.m. on September 1, 1984, Byford came to her door and told her that he had a court order for her eviction. The plaintiff said that she and Byford began arguing through the closed door. According to the plaintiff, Byford informed her of his intent to change the locks on the apartment door, and he then opened the door with a pass key; once the door was open, the plaintiff and Byford exchanged words and engaged in a shoving match. The plaintiff testified that she slapped Byford in the face while she was struggling with him for control of the door. According to the plaintiff, Byford then hit her in the head with an object and pushed her into the apartment, where he continued to strike her in the head and face with his fists. The police and paramedics were summoned. The plaintiff was treated at a local hospital for injuries to her head, eyes, nose, and face, and she was released from the hospital later that day.

William Byford testified that he worked as a handyman for Mazhar on a job-to-job basis and received an hourly wage in cash. Byford testified that on the morning in question he went to the plaintiff's apartment to inspect the premises. Byford explained that the plaintiff's family was moving out and that he was going to prepare the apartment for new tenants. Byford said that the plaintiff initially refused to admit him into the apartment but that she later relented; Byford denied that he opened the door with a pass key. Byford testified that in the ensuing argument the plaintiff spat in his face, slapped him, and kicked him in the groin. Byford testified that he could not remember striking the plaintiff, but he insisted that any action he took was done in self-defense.

Byford also testified that he never held himself out as an agent of SRP Associates. He further claimed that although he had signed the answer to the plaintiff's complaint as an agent, he had not been aware of the significance of the documents. Byford additionally admitted that his wife, Terri, signed his name on occasion on landlord's five-day notices as an agent of SRP. Byford admitted to signing documents on behalf of SRP, but he insisted that he had never received authorization from SRP to act as its agent or manager.

Masood Mazhar, the managing partner of defendant SRP Associates, testified that at the time in question he employed Byford to paint apartments and to do other general maintenance work in the complex. Mazhar said that he also employed Byford's wife, Terri, to show apartments to prospective tenants, take complaints, and collect rent. Mazhar claimed that he never authorized Byford to sign anything as an agent or manager of SRP. In an attempt to rebut this, plaintiff's counsel produced a landlord's five-day notice bearing William Byford's signature as agent or attorney of SRP.

On the second day of trial, defense counsel made an oral motion to amend the pleadings on behalf of defendant SRP Associates. Counsel sought to deny the admissions made in the answer previously filed on behalf of both defendants regarding the existence of an agency relationship between Byford and SRP. The trial Judge denied the motion as untimely. The trial Judge noted that defense counsel had filed a joint appearance on behalf of both Byford and SRP Associates and was representing both defendants at trial. The trial Judge concluded that the answer constituted a judicial admission by SRP and that SRP ...

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