Kent v. Muscarello
| Decision Date | 13 February 1973 |
| Docket Number | No. 71--389,71--389 |
| Citation | 9 Ill.App.3d 738,293 N.E.2d 6 |
| Parties | Philip J. KENT, Plaintiff-Appellant, v. Joseph L. MUSCARELLO et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Franz & Franz, Crystal Lake, for plaintiff-appellant.
Bruce E. Kaufman, Waukegan, Harry D. Lavery, Chicago, for defendants-appellees.
The question here presented is whether an action for malicious prosecution is one for 'injury to real or personal property' or 'to the person', or, where two of the defendants are policemen, it is one 'against officers for misfeasance, malfeasance or nonfeasance' within the meaning of the survival statute so as to survive plaintiff's death.
After the plaintiff died the executor of his estate asked leave to be substituted as plaintiff. Defendants objected and moved to dismiss the action with prejudice on the ground that the action did not survive. The court denied leave and dismissed the action with prejudice. Plaintiff appeals from that order.
We have taken with this case a motion to strike certain portions of appellant's Statement of Facts not supported by the record and for his failure to comply with Supreme Court Rule 341(e)(6) Ill.Rev.Stat.1971, c. 110A, § 341(e)(6) which requires appropriate references in the statement of facts to the pages of the record on appeal. Counsel for plaintiff's executor consents to the allowance of the motion to the extent of striking only those portions of the statement of facts in appellant's brief which are not supported by the record. Accordingly, those portions are stricken. However, we feel compelled to call to the attention of counsel that this court was not aided by a statement of facts containing 'factual' assertions without appropriate references to the pages of the record, and many assertions without any support whatever in the record on appeal. Counsel's action in submitting such statement of facts was improper and we reproach him for doing so.
On August 12, 1970 Philip Kent brought an action for false imprisonment and malicious prosecution against two police officers for falsely and maliciously, and without reasonable cause, arresting him at his home on July 10, 1969, taking him to jail, where plaintiff was confined about 22 hours on the charge of forgery before being released on bail. When Mr. Kent was brought to trial on August 19, 1969 the charges were dismissed and he was discharged. The original complaint alleged that by reason thereof plaintiff was greatly injured in his good name, credit and reputation, and that he suffered 'great anguish and pain of body and mind,' paid about $550 in defending himself and was prevented from 'transacting his affairs and business' for a long time, to his damage in the sum of $1,000, and demanded judgment in the sum of $100,000 and costs.
After the complaint was once amended by leave of court, plaintiff received leave on May 6, 1971 to file his second amended complaint joining three other defendants. In that complaint plaintiff alleged further that his anguish and the acts of defendants caused, aggravated or activated the contracting by him of cancer of the thymus gland. On July 10, 1971 plaintiff died leaving a will which was admitted to probate and one Richard Kent was appointed executor. On August 31, 1971 the executor filed a petition alleging such death, the issuance to him of letters testamentary, and requested that he be substituted as plaintiff. On September 30, 1971 the court denied such leave and upon motion of the defendants dismissed the action with prejudice on the ground that the action did not survive plaintiff's death. Appeal is taken from that judgment.
A suit for malicious prosecution is a common law tort action. As such it did not survive the death of the injured party or tort feasor. The Illinois Survival Statute (Ill.Rev.Stat.1969, ch. 3, sec. 339) provides:
'In addition to the actions which survive by the common law, the following also survive: actions of replevin, Actions to recover damages for an injury to the person (except slander and libel), Actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, Actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of 'An Act Relating to Alcoholic Liquors', approved January 31, 1934, as amended.' (Underscoring supplied.)
Plaintiff's executor contends that this action survives under one or another of the underscored actions listed in the statute. He relies principally on McDaniel v. Bullard, 34...
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Beard v. Robinson
...v. Bullard, 34 Ill.2d 487, 491, 216 N.E.2d 140, 143 (1966), we believe the district court erred in relying on Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973), for the proposition that this action does not survive as an action "against officers for misfeasance, malfeasance......
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William J. Templeman Co. v. Liberty Mut. Ins. Co.
...critical differences between the two actions. For example, malicious prosecution is a common law tort action (Kent v. Muscarello, 9 Ill.App.3d 738, 740, 293 N.E.2d 6, 7 (1973) (a "suit for malicious prosecution is a common law tort action")) which may be tried to a jury (Mack v. First Secur......
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Jarvis v. Stone
...Productions, Inc., 230 F.Supp. 721 (N.D.Ill.1964), aff'd, 345 F.2d 418 (7th Cir. 1965) (right to privacy); Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973) (malicious prosecution); Pinkerton v. Gilbert, 22 Ill. App. 568 (1st Dist. 1887) (false Those cases are indistinguish......
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Gates v. Montalbano
... ... Nonetheless, in responding to Administrator Gates's current motion Montalbano takes issue with that aspect of Opinion I, claiming that under Kent v. Muscarello, 9 Ill. App.3d 738, 293 N.E.2d 6 (2d Dist.1973) a police officer is not an "officer" within the meaning of Illinois' Survival Act ... ...