{ "id": 5282776, "name": "Simon Freides, Plaintiff-Appellee, v. Sani-Mode Manufacturing Co., an Illinois Corporation, and Manny Stern, Defendants-Appellants", "name_abbreviation": "Freides v. Sani-Mode Manufacturing Co.", "decision_date": "1964-12-02", "docket_number": "Gen. No. 48,960", "first_page": "226", "last_page": "237", "citations": [ { "type": "official", "cite": "54 Ill. App. 2d 226" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "50 NE2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1931, "opinion_index": 0 }, { "cite": "135 NE 84", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1931, "opinion_index": 0 }, { "cite": "302 Ill 559", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5012951 ], "year": 1931, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill/302/0559-01" ] }, { "cite": "151 Ill App 378", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2630623 ], "year": 1931, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app/151/0378-01" ] }, { "cite": "209 Ill App 112", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2918702 ], "opinion_index": 0, "case_paths": [ "/ill-app/209/0112-01" ] }, { "cite": "189 NE2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill App2d 37", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5252452 ], "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0037-01" ] }, { "cite": "81 Ill 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2671160 ], "year": 1876, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill/81/0478-01" ] }, { "cite": "17 NE2d 790", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "28 Ill App2d 90", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5217644, 5218518 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0090-02", "/ill-app-2d/28/0090-01" ] }, { "cite": "70 Ill 544", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308897 ], "year": 1873, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill/70/0544-01" ] }, { "cite": "247 Ill App 161", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3309992 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ill-app/247/0161-01" ] }, { "cite": "281 Ill App 31", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3279968 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ill-app/281/0031-01" ] }, { "cite": "74 NE2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "332 Ill App 138", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5045433, 5042227 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ill-app/332/0138-01", "/ill-app/332/0138-02" ] }, { "cite": "336 Mo 897", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8735185 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/mo/336/0897-01" ] }, { "cite": "179 A2d 93", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1962, "opinion_index": 0 }, { "cite": "109 NYS2d 696", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1952, "opinion_index": 0 }, { "cite": "169 NYS2d 37", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1957, "opinion_index": 0 }, { "cite": "151 NYS2d 823", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1957, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "52 NE2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "321 Ill App 157", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2422854, 2422047 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ill-app/321/0157-01", "/ill-app/321/0157-02" ] }, { "cite": "155 NE2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1959, "opinion_index": 0 }, { "cite": "20 Ill App2d 224", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5194736 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "231" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0224-01" ] }, { "cite": "77 Ill 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821748 ], "year": 1875, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill/77/0032-01" ] }, { "cite": "23 Ill 575", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5802233 ], "weight": 2, "year": 1860, "pin_cites": [ { "page": "577" }, { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill/23/0575-01" ] }, { "cite": "13 Ill 702", "category": "reporters:state", "reporter": "Ill.", "year": 1852, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "152 Ill App 502", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2626561 ], "year": 1910, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app/152/0502-01" ] } ], "analysis": { "cardinality": 899, "char_count": 16295, "ocr_confidence": 0.533, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15733890277000706 }, "sha256": "99dbb108774a1277a009b21e2ce99be7cc6912dd8e48824ecb47448540020059", "simhash": "1:fa75f4df9b4cf2d8", "word_count": 2705 }, "last_updated": "2023-07-14T21:56:22.509094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DRUCKER and MoCORMICK, JJ., concur." ], "parties": [ "Simon Freides, Plaintiff-Appellee, v. Sani-Mode Manufacturing Co., an Illinois Corporation, and Manny Stern, Defendants-Appellants." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE ENGLISH\ndelivered the opinion of the court.\nThis appeal is taken from a judgment awarding $25,000 in damages for malicious prosecution, against the individual defendant, Manny Stern, and the corporate defendant of which he was president and principal shareholder, Sani-Mode Manufacturing Company. Plaintiff alleged that Stern and SaniMode (by Stern) appeared before a grand jury on June 24, 1948 and falsely, maliciously and without probable cause charged plaintiff with \u201cunlawfully, feloniously and fraudulently taking and converting to his own use,\u201d with the intent to steal, plastic film worth $5,000. It was alleged that defendants \u201ccaused\u201d the return of an indictment on that date. This indictment was nolle prossed because defective in attributing the ownership of the property to Stern instead of Sani-Mode. Stern again testified before the grand jury, in response to subpoena, and a second indictment was returned November 17 similar to the first except that it substituted the name of Sani-Mode Manufacturing Company. Plaintiff was found not guilty in a trial before a jury on February 25, 1949. He then instituted his suit for malicious prosecution, which was twice dismissed for want of prosecution. The present judgment was obtained in a 1962 trial, almost fourteen years after the acts complained of.\nThe evidence discloses that from August, 1947 plaintiff was a subcontractor for Sani-Mode, which processed and sold plastic products such as tablecloths and curtains. Bolls of material sent by defendant were cut and sewn by plaintiff to certain specifications at an agreed price per dozen items. Stem testified that he did not compute the yardage to be used from the rolls for particular orders. Instead, more was sent than needed, and from time to time plaintiff was given additional orders to be filled from the excess yardage which, though SaniMode\u2019s property, remained in plaintiff\u2019s possession. Likewise, plaintiff\u2019s office manager stated that she made no record of the amount of material left on the rolls at the completion of a particular order, but plaintiff would just keep cutting until the rolls were used. She testified that sometimes she ran short of Sani-Mode plain border material and used the same kind of plain plastic which was bought by plaintiff from another source. She would let this credit accumulate until it reached a full roll before balancing the account by appropriating a roll sent by Sani-Mode, but she did not inform defendant of this practice.\nOn June 15, 1948, plaintiff himself subcontracted some work by sending four rolls of plain material, claimed to be his own, to American Cutting and Binding Company to be cut into curtain borders. Plaintiff\u2019s office manager testified the rolls were shipped in old cartons which bore Sani-Mode labels, and when a question arose about the order, American Cutting called Sani-Mode by mistake.\nIn response to this call, first Levy, an employee of Stern, then Stern, and eventually his lawyer, proceeded to plaintiff\u2019s factory on June 16, where Stern said he recognized 70 rolls of Sani-Mode\u2019s exclusive patterns comprising 5,000 yards of plastic material. Fifty-five rolls were in original packages and fifteen had been opened.\nStern testified that he protested to plaintiff, \u201cHow come it has been several months since we have discontinued these patterns and you still got them here, and you told me you don\u2019t have any more of our goods?\u201d To which plaintiff replied, \u201cI bought these from St. Lawrence Textile.\u201d Stern then asked, \u201cYou bought the same patterns we have?\u201d and plaintiff answered, \u201cYes.\u201d Stern then asked to see the bills which would show that plaintiff had bought the goods, but plaintiff did not produce any. Instead, according to Stern, plaintiff, after a little while, said \u201cStern, I am doing you wrong. ... I did you wrong, I am willing to make good, let\u2019s see how much goods belong to you, and we will pull it out and I will agree to let you have it.\u201d\nPlaintiff and his office manager testified they had been planning to go into business for themselves and had accumulated material from several corn-parties, one of which was the aforementioned St. Lawrence Textile company, which had supplied Sani-Mode with exclusive patterns. Plaintiff introduced a hill for several thousand dollars from St. Lawrence dated the previous January in support of his explanation, hut the bill does not indicate what patterns were involved, nor was there any evidence that it had been exhibited to Stern prior to commencement of the criminal proceedings. Plaintiff claimed that, although he had asked St. Lawrence for Sani-Mode\u2019s exclusive patterns, he had been unable to obtain them.\nPlaintiff did not testify to the quantity of SaniMode material on the premises at the time of the confrontation, but merely said: \u201cI didn\u2019t have too much on hand. I had a lot of goods cut up and had to be finished.\u201d\nPlaintiff testified: \u201cStern said he will arrest me and put me in jail, you can fight me if you want, but you haven\u2019t enough money to fight me.\u201d Also, according to -plaintiff, defendant\u2019s lawyer said to plaintiff: \u201cMr. Preides, I\u2019ve got to tell you something, you know I am a good friend of yours, take my advice, give up whatever you have, machines, the equipment, everything, sign it over, and we will do you no harm.\u201d The lawyer denied giving this advice, and Stern denied making any threat to plaintiff.\nAfter plaintiff had called his lawyer and much discussion had ensued, Stern and his men were ordered off the premises and they departed without the goods.\nThe next day defendants started a replevin suit in the Municipal Court of Chicago, and, after filing bond, Stern returned to plaintiff\u2019s place of business with a bailiff and a writ of replevin for various materials which he testified he had seen there the day before. They found but a part of the property listed therein. An order entered after trial of the replevin action two years later found the right of property in Sani-Mode to 2,571 yards of plastic material, 302 tablecloths, 1,142 curtains and 159 garment bags. These items evidently were the ones that had been recovered by the bailiff. The suit for the rest of the property was dismissed on January 18,1951, upon stipulation.\nA second replevin suit, filed by Sani-Mode against American Cutting and Binding Co., resulted in the recovery of the four rolls of plastic sent there by plaintiff. Plaintiff did not intervene in that suit.\nDefendants kept the goods recovered in the two replevin suits but did not sue for the value of the remainder. Plaintiff claimed, and Stern appears to have agreed, that labor charges of $1,500, outstanding at the time of the confrontation, were paid by defendant at the time the first replevin suit was dismissed.\nPlaintiff and his office manager claimed that an accounting was made in October of 1949, when the manager and plaintiff\u2019s bookkeeper examined the records with Stern\u2019s employee, Levy, and found that more material had been returned by the plaintiff than he had received. Stern denied this, asserting that Levy at that time was no longer in his employ and thus could not then have acted as his agent.\nReturning to June of 1948, soon after defendant\u2019s goods were seized by the bailiff under the replevin writ at plaintiff\u2019s factory, Stern and his attorney conferred with an Assistant State\u2019s Attorney at the latter\u2019s office. He, in turn, contacted plaintiff by phone and then prepared a complaint form which was approved by Richard B. Austin, First Assistant State\u2019s Attorney, for presentation of the case to the grand jury.\nAn essential element in a suit for malicious prosecution, oftentimes called the gist of the action, is defendant\u2019s lack of probable cause in initiating proceedings against the plaintiff. Denslow v. Hutchinson, 152 Ill App 502, 504 (1910); Jacks v. Stimpson, 13 Ill 702, 704 (1852); Israel v. Brooks, 23 Ill 575, 577 (1860). Probable cause is defined as \u201csuch 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 strong suspicion that the person arrested is guilty.\u201d Harpham v. Whitney, 77 Ill 32, 42 (1875). See also Hughes v. New York Cent. System, 20 Ill App2d 224, 231, 155 NE2d 809 (1959).\nIn the instant case prima facie probable cause is established by the grand jury\u2019s return of indictments against the plaintiff. Doss v. Hutson, 321 Ill App 157, 52 NE2d 279 (1943); 54 CJS Malicious Prosecution \u00a7 35. (For decisions in other jurisdictions reaching this result, see Eberhardt v. Consolidated Edison Co. of New York, 151 NYS2d 823, 824, affd 169 NYS2d 37 (1957); Berger v. American Nat. Fire Ins. Co., 109 NYS2d 696 (1952); Brown v. Cluley, 179 A2d 93 (Del Super 1962); and Dawes v. Starrett, 336 Mo 897 (1935).) And the fact that plaintiff was found not guilty by the trial jury does not negative this prima facie defense. The presumption raised by the grand jury action in favor of the proposition that defendants acted with probable cause may be rebutted only by proof that the indictments were obtained by false testimony on the part of defendant or by his failure to make a full statement of facts to the grand jury. Eberhardt v. Consolidated Edison Co. of New York, supra; Dawes v. Starrett, supra.\nProof of false testimony before the grand jury would necessarily involve proof of the content of the testimony given before the grand jury. There would appear to be no problem as to the admissibility of such evidence, but no attempt was made to introduce it directly or indirectly. Even when defendant was called as an adverse witness, he was not asked to relate his testimony before the grand jury, though he was questioned generally in regard to the matters in issue. We cannot accept plaintiff\u2019s bootstrap argument that the jury\u2019s verdict in this case established the fact that Stern must have testified falsely before the grand jury. And there was no evidence that defendant failed to make a full statement of facts before the grand jury.\nConsidering, nevertheless, the question of probable cause as shown by the evidence which was introduced, we refer again to defendant\u2019s testimony that he saw 70 rolls of plastic film printed with his exclusive pattern in plaintiff\u2019s shop. This appears never to have been clearly denied. Defendant also asserted that he found some of his exclusive patterns sewn into aprons and garment bags which had not been ordered by him. He also testified to the assurance by plaintiff that plaintiff had none of defendant\u2019s goods in his shop. These charges were not rebutted. Furthermore, no evidence overcame the effect of the replevin order, establishing defendant\u2019s right to possession of the goods taken from plaintiff\u2019s factory by the bailiff at defendant\u2019s direction. See Ogrodnik v. Capron, 332 Ill App 138, 74 NE2d 63 (1947). While this decision came later, it necessarily related back to support defendant\u2019s earlier contention that plaintiff was wrongfully in possession of defendant\u2019s goods.\nUnder these circumstances, it was reasonable for defendant to believe that plaintiff was wrongfully detaining and converting material and thus was guilty of larceny by bailee, as charged in the indictments.\nThe fact that plaintiff was subsequently acquitted at the criminal trial in no way diminishes the reasonableness of defendant\u2019s belief in his guilt at the time of the grand jury hearings. Berner v. Prairie State Bank, 281 Ill App 31 (1935); Ellsworth v. Peoples Life Ins. Co., 247 Ill App 161 (1928).\nThe only counter proof offered by plaintiff was his own selfserving statement that \u201cI didn\u2019t have too much of Mr. Stern\u2019s plastic on hand\u201d at the time of the confrontation. \"Would it have been unreasonable for Stern to conclude that any was \u201ctoo much\u201d under all the circumstances? we think not. Plaintiff also testified that he figured from his records that Stern \u201creceived more than what he gave me.\u201d But it should be noted that this testimony related to a point in time about fifteen months after the decision to prosecute, and could not bear upon the question of probable cause for prosecution.\nGranted that it is ordinarily difficult to prove a negative, nevertheless, from the early cases to the present time there has been an unbroken line of decisions holding that a plaintiff in a malicious prosecution action has the burden of proving the absence of probable cause. Israel v. Brooks, 23 Ill 575, 577 (1860); Palmer v. Richardson, 70 Ill 544, 546 (1873): Carlyle v. Carlyle, 28 Ill App2d 90, 17 NE2d 790 (1960).\nMalice is also one of the elements which plaintiff must prove. Calef v. Thomas, 81 Ill 478, 482 (1876); Hughes v. New York Cent. System, 20 Ill App2d 224, 228, 155 NE2d 809. It was held by this court in Hughes that malice is not a legal presumption which can be inferred from the mere lack of probable cause. There are other decisions which tend to disagree with this position: e. g., Carbaugh v. Peat, 40 Ill App2d 37, 47, 189 NE2d 14, but so far as concerns the instant case this point need not now be decided. For we hold that considering only plaintiff\u2019s evidence in the light most favorable to him, there was no evidence from which either malice or want of probable cause could reasonably be attributed to defendants.\nIn addition to the failure of plaintiff\u2019s evidence on these two points it was also undisputed that defendant presented the matter to the State\u2019s Attorney on the advice of his lawyer. Public policy favors protecting such action if it be shown that the client had presented all the facts to his attorney in obtaining his advice. We say that the evidence is undisputed on this point because of the circumstance that defendant\u2019s attorney was present with his client at the confrontation in plaintiff\u2019s factory, and they acquired knowledge of the essential \u201cincriminating\u201d facts jointly through a tour of the premises during which they verified the presence there of material which had originated with defendant. It was also on the basis of this information that defendant\u2019s attorney prepared the statement of claim in replevin (ultimately successful) and accompanied Stern to the State\u2019s Attorney\u2019s office. Mioduszewski v. Spoganitz, 209 Ill App 112.\nWhile plaintiff implies that the action of the State\u2019s Attorney\u2019s office was politically motivated, because of a political relationship between the Assistant State\u2019s Attorney and an Alderman who was friendly to Stern, we consider this point to be of no consequence. It does not purport to apply to the decision of the First Assistant State\u2019s Attorney. As to the Assistant who took Stern\u2019s corn-plaint, lie testified that the determination to present the matter to the grand jury was his own decision, prompted only by the facts of the case as related by Stern. Stern and Levy were under subpoena when they testified before the grand jury which returned the indictments against plaintiff.\nIn view of the conclusion we have reached, trial errors suggested by defendants pertaining to the admission of evidence of the pecuniary worth of one defendant, the exclusion of testimony by defendant Stern (on the question of malice) to the effect that he bore the plaintiff no ill will, and the issue of excessiveness of damages awarded, need not be determined.\nThe judgment of the trial court is reversed Avith judgment here in favor of defendants.\nReversed.\nDRUCKER and MoCORMICK, JJ., concur.\nCharges of false arrest and imprisonment were also made in the complaint. We shall consider them to have been abandoned in the trial court, however, as no instructions regarding them were given to the jury and apparently none was offered. Plaintiff did not file a cross appeal.\nKirsch v. Walter, 151 Ill App 378, 383; People v. Goldberg, 302 Ill 559, 564, 135 NE 84; Hower v. Clerkin, 50 NE2d 902 (Ohio App 1931); 23 CJS Criminal Law \u00a7 846.", "type": "majority", "author": "MR. PRESIDING JUSTICE ENGLISH" } ], "attorneys": [ "Sherwin & Sherwin, of Chicago (Julius L. Sherwin and Theodore R. Sherwin, of counsel), for appellants.", "William C. Wines, Graham & McElligott and Max-field Weisbrod, of Chicago (William C. Wines and Errett 0. Graham, of counsel), for appellee." ], "corrections": "", "head_matter": "Simon Freides, Plaintiff-Appellee, v. Sani-Mode Manufacturing Co., an Illinois Corporation, and Manny Stern, Defendants-Appellants.\nGen. No. 48,960.\nFirst District, Fourth Division.\nDecember 2, 1964.\nSherwin & Sherwin, of Chicago (Julius L. Sherwin and Theodore R. Sherwin, of counsel), for appellants.\nWilliam C. Wines, Graham & McElligott and Max-field Weisbrod, of Chicago (William C. Wines and Errett 0. Graham, of counsel), for appellee." }, "file_name": "0226-01", "first_page_order": 236, "last_page_order": 247 }