{ "id": 3183955, "name": "DAN YEARIAN, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK, Defendant-Appellant", "name_abbreviation": "Yearian v. Columbia National Bank", "decision_date": "1980-07-18", "docket_number": "No. 79-390", "first_page": "508", "last_page": "514", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 508" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "298 Ill. 192", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5031667 ], "year": 1961, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill/298/0192-01" ] }, { "cite": "146 Ill. 614", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3066995 ], "opinion_index": 0, "case_paths": [ "/ill/146/0614-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "336 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 704", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2794825 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0704-01" ] } ], "analysis": { "cardinality": 820, "char_count": 17873, "ocr_confidence": 0.89, "pagerank": { "raw": 5.4906805330280094e-08, "percentile": 0.34378896221362715 }, "sha256": "9cf957189b6f09d0ecbeb77bf57df0ded858f4ff915178fc273bde1025e6e3be", "simhash": "1:8326009a924e089e", "word_count": 3016 }, "last_updated": "2023-07-14T21:36:08.867369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAN YEARIAN, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE JONES\ndelivered the opinion of the court:\nIn the small claims division of the circuit court of St. Clair County, plaintiff, Dan Yearian, brought an action alleging that defendant, Columbia National Bank, had committed a trespass upon his personal property and thereby caused $252.70 of actual damage. Plaintiff also sought punitive damages in the amount of $747.30. The cause of action arose out of an attempt by defendant\u2019s agents to take possession of a motor vehicle which resembled plaintiff\u2019s and served as security for a loan defendant had advanced not to plaintiff but to one of defendant\u2019s customers, Don Polichek. Plaintiff claimed actual damage had occurred to the fiberglass molding around one of the two latches of the gate that provides access to the vehicle from the rear. The trial court found plaintiff\u2019s \u201c[vjehicle damaged due to defendant by its agents by trespass in willful and wanton disregard for the property rights of Plaintiff\u201d and assessed against defendant $55.50 in compensatory and $747.30 in punitive damage and costs. From that order defendant appeals, raising three issues: (1) whether the award of compensatory damages is contrary to the manifest weight of the evidence; (2) whether photographic evidence was improperly admitted upon an insufficient foundation; (3) whether the award of punitive damages was erroneous.\nAt the hearing plaintiff called as one of his witnesses defendant's agent and president, Louis Schlafly, who testified that the account of defendant\u2019s customer, Don Polichek, had been delinquent, that the account had been secured by a black 1976 CMC \u201cJimmy,\u201d and that he had gone to the place of Polichek\u2019s employment on May 18,1978, in order to \u201crepossess\u201d this vehicle. Polichek, like plaintiff, was employed by the Amax Zinc Company. While Schlafly, together with Shirley Klein, another of defendant\u2019s employees, was looking for Polichek\u2019s vehicle in the Amax parking lot, he saw Clarence Leyton, who was not only one of defendant\u2019s shareholders but also, like Polichek and plaintiff, an employee of the Amax Zinc Company. Schlafly asked Leyton if Don Polichek was at work that day. Presumably Leyton indicated that he was. Thereafter Schlafly in his search of the parking lot noticed plaintiff\u2019s vehicle, a black 1972 CMC \u201cJimmy,\u201d the only vehicle in the parking lot that looked like the one Schlafly sought. A CMC \u201cJimmy\u201d is a four-wheel drive vehicle equipped with large tires and designed so that its body sits rather high off the ground. Schlafly testified that he had seen Polichek\u2019s vehicle on \u201c[m]ore than one\u201d occasion before this incident though he did not know exactly how many times. He indicated that he had not attempted to obtain the license number of Polichek\u2019s vehicle and said that he \u201cdidn\u2019t pay attention to the license plate number\u201d of plaintiff\u2019s vehicle.\nUsing keys that fit the Polichek vehicle, Schlafly tried unsuccessfully to open first the door on the driver\u2019s side and then the door on the passenger\u2019s side of plaintiff\u2019s vehicle. After lifting the hood, Schlafly entered the vehicle through the \u201crear lift gate,\u201d opened by pulling it away from the vehicle and lifting it up. Schlafly testified that the gate was unlocked at the time he attempted to enter the vehicle and that he had had merely to turn the handle and pull the gate up to get in. Schlafly said that once inside, he found that the ignition key did not work. Then, opening a book lying \u201con the passenger\u2019s side,\u201d he discovered, written inside, the name, \u201cDan Yearian.\u201d With that discovery, Schlafly removed himself from the vehicle through the rear lift gate and asked Clarence Leyton, who had been standing nearby chatting with Shirley Klein, whether Dan Yearian worked there. An affirmative answer to that question confirmed Schlafly\u2019s deduction that the vehicle belonged not to Polichek but to Yearian.\nSchlafly testified that he and Shirley Klein had then closed the rear lift gate. He stated that at first he had tried to close the gate himself but had been unable to \u201cget it to move.\u201d After a second unsuccessful effort to close the gate alone \u2014 one in which he \u201ctried the latch\u201d \u2014 he called Shirley Klein to help him. Together they were able to push the gate down, each one manipulating a latch. Schlafly denied exerting any force when he closed the gate and stated that at no time did he notice any damage to it. He had observed, he said, that the \u201cbars on the lid\u201d were rusted and difficult to move and that the vehicle was in \u201cgenerally rough condition.\u201d\nShirley Klein testified for defendant that when Schlafly got out of the vehicle, \u201che had the back up, and we couldn\u2019t close it. It had a little latch on each side and then we pushed the latches and it closed.\u201d She said that she had heard no \u201ccracking or popping sounds\u201d when the gate was closed and that there had been no reason to force the gate open because it was not locked. She had noticed nothing in particular about the latches other than their being unlocked. Of the vehicle itself she noticed \u201cthe whole vehicle was in not too good of condition.\u201d She indicated that the failure of the duplicate keys for Polichek\u2019s vehicle to open plaintiff\u2019s did not alert them to their mistake because Polichek \u201chad been notified that we were going to repossess the vehicle\u201d and could have had the locks Changed.\nClarence Leyton testified for defendant that on the day in question, after unexpectedly meeting Mr. Schlafly and Mrs. Klein in the Amax parking lot, Schlafly had asked him if he knew \u201cwhere Don Polichek keeps his vehicle.\u201d Leyton answered that he didn\u2019t even know what Polichek\u2019s vehicle looked like. Then, apparently referring to plaintiff\u2019s vehicle, Schlafly said, \u201cThis fits the description of the vehicle.\u201d To that Leyton responded that he did not know whether it was Polichek\u2019s or not. The witness stated that after trying unsuccessfully to open the doors of the vehicle, Schlafly \u201cclimbed in the vehicle [through the rear lift gate], went in the front seat, and immediately come [sic] out, and said, \u2018Dutch [Clarence], do you know anybody by the name of Dan Yearian?\u2019 And I said \u2018Yeah, he works here. He\u2019s a mechanic over in the truck shop.\u2019 He said, \u2018Well this must be his vehicle.\u2019 And I said, \u2018Yes, I guess it is.\u2019 That was basically the whole incident.\u201d The witness continued, \u201cThen Mr. Hutch [Schlafly] lowered the \u2014 that\u2014whatever you call that thing \u2014 the back window, and it wouldn\u2019t latch properly or something so he called Mrs. Klein over and they both \u2014 it just went together, real easy.\u201d Asked, \u201cWhat, if any, sound did you hear when Mr. Schlafly and Mrs. Klein were closing the back gate of that truck?\u201d the witness answered,\n\u201cNone. They didn\u2019t have that much trouble. It was \u2014 one side apparently wouldn\u2019t \u2014 I can\u2019t say apparently, I suppose \u2014 but when he shut it, obviously he was having trouble getting it to close so he called Mrs. Klein over and she was standing on one side and he was on the other side and it just closed and that\u2019s it.\u201d\nTwo Amax employees, Vernon Chilton and Revis Watson, testified for plaintiff. Chilton said that on the day in question he had been in a \u201cshack\u201d about 100 feet from plaintiff\u2019s vehicle when he saw a man and woman drive up in a car. His account of the conduct of the man, whom he identified in the courtroom as Schlafly, corroborated that of Schlafly. However, the witness said he did not see how many times Schlafly attempted to close the gate, and his other testimony with respect to Schlafly\u2019s closing of the gate is not helpful because of portions transcribed as \u201cinaudible.\u201d Watson said that on that day he saw \u201cDutch\u201d [Clarence] Leyton talking to \u201cthis man and woman.\u201d The witness stated that then he talked to Elmer [Vernon Chilton] who \u201cwas explaining what happened. As far as seeing it, I never seen it really.\u201d\nPlaintiff testified that on the day in question an employee notified him that someone was in his \u201ctruck,\u201d which was apparently visible from the place where that employee worked. However, by the time plaintiff and a guard reached his vehicle, no one was there. He noticed that both the hood and the rear gate were incompletely latched. Finding both doors locked and fearing theft of his spare tire, which cost over $150, or his tools, stereo or battery, he entered the vehicle through the rear lift gate and inspected for any loss. Finding none, he apparently resumed work. Later, as he drove from the parking lot, he heard the gate rattling, assumed he had not closed it securely, stopped to inspect and discovered cracks in the fiberglass molding near one of the latches. He indicated that the damage was not readily visible with the gate partially latched and for that reason, together with his preoccupation with the possibility of theft during his initial inspection, he had not noticed the damage earlier. He testified that in order to lock the gate, one had to turn the latches down manually. He speculated that if the latches were not so turned, the fiberglass would break because of the weight of the gate, \u201cclose to one hundred pounds if not better.\u201d He gave as the reason for the need to turn the latches by hand the age of his vehicle \u2014 it was seven years old at the time of the hearing: \u201cI just assume that is from wear and tear on it that you have to turn it.\u201d He testified that prior to the entry by Schlafly the gate was not damaged.\nPlaintiff claimed that as a result of the damage the gate required replacement rather than repair. However, the trial court expressly found that though plaintiff had shown that replacement of the gate had been recommended, plaintiff had put on no evidence of the basis of the recommendation for replacement or the cost of repair. Making certain findings with respect to costs for repair, the trial court ordered that defendant pay compensatory damages accordingly, in an amount substantially less than that plaintiff had asked.\nDefendant contends on appeal that the trial court\u2019s award of compensatory damages requires reversal because such an award is contrary to the manifest weight of the evidence. We disagree. Despite the testimony of Schlafly that he had observed no damage to the vehicle and had exerted no force on the gate when he closed it, he admitted that he had had difficulty closing it, difficulty observed by two other persons including defendant\u2019s other agent present, Shirley Klein, who came to his assistance at his request because of it. Furthermore, plaintiff testified that because of the age of the vehicle, manipulation of the latches in a certain way was required in order to close the gate. He spoke, too, of the not-inconsiderable weight of the gate. Schlafly and Shirley Klein both testified that they closed the gate by manipulating the latches. Whether they did so in the way described by plaintiff is not known. Plaintiff testified that he had found the gate partially latched and that the damage had not existed prior to this episode. He indicated as well that the damage, having occurred on the side of the panel, was not particularly visible when the gate was partially latched. If the damage was not particularly visible to plaintiff for that reason, it would have been not particularly visible to Louis Schlafly or Shirley Klein for the same reason. There is no evidence that they reopened the gate after finally getting it closed. Without doing so, they might well not have seen any damage they might have caused. Since they did not think they had caused any damage, they would have had little reason to look for evidence thereof. Therefore, we think that the trier of fact could reasonably have found that defendant\u2019s agents had damaged the rear lift gate of plaintiff\u2019s vehicle. Here the trial court was asked to believe one of two inconsistent accounts of the episode, one in which defendant\u2019s agents damaged plaintiff\u2019s vehicle and another in which they did not. Since the trial court is in a better position to assess the credibility of the witnesses than is the reviewing court, we do not disturb its finding unless it is against the manifest weight of the evidence. (Bridges v. Neighbors (1975), 32 Ill. App. 3d 704, 336 N.E.2d 233.) Since the trial court\u2019s finding that defendant by its agents damaged plaintiff\u2019s vehicle is not contrary to the manifest weight of the evidence, we will not disturb it.\nDefendant contends that the trial court erred in denying its objection to the admission of certain photographic evidence upon the ground of insufficient foundation. Defendant maintains that \u201c[w]hile it was established that Yearian took the photographs approximately three to five days after the incident occurred, there is no basis upon which it can be determined whether the damage occurred after the incident took place and before the pictures were taken. Furthermore, since it was indicated that the rear lift-gate was partially rusted and that the vehicle itself was in a generally rough condition, the specific condition of the gate prior to this incident should have been established in order to determine whether the damage portrayed in the picture could have occurred prior to the incident in question.\u201d Plaintiff testified that the photograph in question showed the \u201centire damage\u201d to his vehicle. He identified in the photograph the precise area of damage. Asked, \u201cAnd does it [the photograph] accurately reflect the damage that was done to the lower right hand comer of the access to your vehicle?\u201d he answered, \u201cI think it\u2019s very accurate.\u201d Earlier he had described how on May 18,1978, he had learned of Schlafly\u2019s entry into his vehicle and had later noticed \u201cthe damage\u201d to the rear lift gate. Therefore, by his testimony, plaintiff had already established that the damage portrayed had occurred on May 18, 1978. Thus, any inference that this damage occurred either sometime prior to that date or sometime after it, though prior to the taking of the photograph, defies logic and reason. Likewise, any attack upon the validity of the instant judgment which relies upon such an inference is altogether meritless.\nDefendant\u2019s final contention goes to the propriety of the award for punitive damages. Not long ago in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359, the supreme court stated plainly the rule that the question of whether the facts of a case warrant the imposition of punitive damages is one not of fact but of law:\n\u201cIt has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others (Consolidated Coal Co. v. Haenni (1893), 146 Ill. 614). Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. (Eshelman v. Rawalt (1921), 298 Ill. 192,197.) And, while the measurement of punitive damages is a jury question, the preliminary question of whether the facts of a particular case justify the imposition of punitive damages is properly one of law. Knierim v. Izzo (1961), 22 Ill. 2d 73, 87.\u201d\nThus the question for the reviewing court is not whether a finding of wilful and wanton behavior, for example, is contrary to the manifest weight of the evidence, but whether the facts of the case warrant imposing punitive damages. Because of the penal nature of such damages, the law disfavors them and requires courts to exercise caution that they not impose punitive damages improperly or unwisely. (Kelsay v. Motorola, Inc.) Adherence to these rules compels us to conclude that punitive damages should not be awarded in the case at bar and that the award for $747.30 as such damages was therefore improper.\nAlthough Mr. Schlafly might well have armed himself with further information about the vehicle he sought to confiscate \u2014 and will undoubtedly do so in the future \u2014 we do not think that his behavior or that of Mrs. Klein in aiding him rises to the level of wilful and wanton conduct. Because of the fairly distinctive appearance of Polichek\u2019s vehicle and Schlafly\u2019s familiarity with it, however slight, his failure to obtain the license number for the vehicle is less reprehensible than it might be in other circumstances. Another significant fact, though one not mentioned by either party in the briefs, is Schlafly\u2019s inquiry of Leyton as to whether Polichek was at work that day and, by inference, whether his vehicle was in the parking lot. With his expectation of finding Polichek\u2019s vehicle strengthened, Schlafly\u2019s subsequent discovery of a single vehicle in the lot that looked like the relatively uncommon one he expected to find naturally reinforced his belief that plaintiff\u2019s vehicle was the one he sought. While we deem Schlafly\u2019s conduct cavalier, at best, we cannot say that it evinced such a disregard of the rights of others that it justifies the imposition of punitive damages. A mistake was made, it is true. But it was no more than that. A wanton disregard for the rights of others is not evident. This is best shown by Schlafly\u2019s immediate withdrawal upon his discovery that he was dealing with the wrong vehicle.\nFor the foregoing reasons the judgment of the circuit court of St. Clair County is affirmed as to the award of compensatory damages and reversed as to the award of punitive damages.\nAffirmed in part; reversed in part.\nKARNS and SPOMER, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE JONES" } ], "attorneys": [ "Stephen C. Buser, of Zimmer & Frierdich, of Columbia, and David R. Jones, law student, for appellant.", "Thomas A. LeChien, of LeChien & Creason, Ltd., of Belleville, and William DeMyer, law student, for appellee." ], "corrections": "", "head_matter": "DAN YEARIAN, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK, Defendant-Appellant.\nFifth District\nNo. 79-390\nOpinion filed July 18, 1980.\nStephen C. Buser, of Zimmer & Frierdich, of Columbia, and David R. Jones, law student, for appellant.\nThomas A. LeChien, of LeChien & Creason, Ltd., of Belleville, and William DeMyer, law student, for appellee." }, "file_name": "0508-01", "first_page_order": 530, "last_page_order": 536 }