Algozino v. Welch Fruit Products Co.

• Decision Date: 27 November 1951
• Docket Number: Gen. No. 45425
• Citation: 102 N.E.2d 555,345 Ill.App. 135
• Parties: ALGOZINO et al. v. WELCH FRUIT PRODUCTS CO. et al. Appeal of WELCH FRUIT PRODUCTS CO. et al.
• Court: United States Appellate Court of Illinois

Page 555

102 N.E.2d 555

345 Ill.App. 135

ALGOZINO et al. v. WELCH FRUIT PRODUCTS CO. et al.

Appeal of WELCH FRUIT PRODUCTS CO. et al.

Gen. No. 45425.

Appellate Court of Illinois, First District, Second Division.

Nov. 27, 1951.

Rehearing Denied Dec. 7, 1951.

Winston, Strawn, Shaw & Black, Chicago, Paul H. Moore, Douglas C. Moir, George B. Christensen and Edward J. Wendrow, Chicago, of counsel, for appellants.

Joseph Barbera, Peter V. Fazio, Chicago, for appellees.

TUOHY, Presiding Justice.

Defendants Welch Fruit Products Company and Black Kow Bottling Company, its subsidiary, appeal from judgments on verdicts for $5,500 for malicious prosecution and $1,500 for libel in favor of plaintiff James Algozino and $5,000 for malicious prosecution in favor of plaintiff Frank Algozino, brother of James.

Plaintiffs' amended complaint charged Welch Fruit Products Company, Black Kow Bottling Company, James P. Cullinan, Chicago So-Grape Beverage Company and Mary O. Welch, executrix of the estate of Thomas R. Welch, deceased, with breach of an oral distributorship contract with defendants, malicious prosecution, libel and slander. During trial the actions were severed, a separate trial granted defendant estate, and a not guilty verdict directed in favor of defendant So-Grape. At the close of all the evidence verdict was directed in favor of Welch Company and Black Kow on the slander charge, but motions were overruled for directed verdicts on the other charges. The verdicts returned found for the defendants on the breach of contract claim, found defendants not guilty as to Frank's claim for libel, guilty as to James' claim for libel, assessing damages thereon at $1,500, and guilty as to both plaintiffs' claims for malicious prosecution, and assessing each plaintiff's damages thereon at the sum of $10,000. Later, on motions for new trial James, at the court's prompting, remitted $4,500 of the malicious prosecution verdict and plaintiff Frank remitted $5,000 of his verdict, and judgments were entered accordingly. The defendant Cullinan is not a party to this appeal.

Defendant Welch Company in 1946 at the time of the grievances complained of was engaged in mixing and bottling a soft drink known as 'Black Kow.' Thomas R. Welch, who died on March 8, 1947, was president of the company. The manager in complete charge of the plant during all the times complained of was defendant Cullinan, and the Algozinos were driver-salesmen who had been employed by Cullinan. In March of 1946, after they had worked for the company less than a year, the employment of both was terminated. On March 27, 1946, plaintiffs sold to the Welch Company, among other things, a Diamond T truck. The Welch Company later advertised the truck for sale and James Algozino called Cullinan on the phone and told him he was interested in its purchase. On Saturday, September 7, 1946, plaintiff James saw Cullinan at the Black Kow plant, and an agreement was made by which Welch Company was to sell him the truck for $700. The certificate of title which plaintiffs had theretofore delivered to Welch Company had never been formally transferred into the name of the company, but remained in plaintiffs' names.

Based on Cullinan's testimony before the grand jury plaintiffs were indicted for theft of the truck. Cullinan's statements to the state's attorney and, presumably, his testimony to the grand jury were to the effect that plaintiffs had answered the defendant Welch Company's advertisement for the sale of the truck, had come to the office on Saturday, September 7, 1946, picked up the certificiate of title which had remained in plaintiffs' names from the time it was originally acquired from them by the company, and had driven the truck away without the knowledge or consent of any of the defendants; that on the following Monday, after the theft had been reported to the police, James Algozino returned the truck to the plant, but, in Cullinan's absence, by deceit had a young woman in the office, type and sign a document acknowledging the receipt of $700 (which was not paid), in payment for the truck, thus again illegally procuring the truck, this time his possession fortified by a written receipt unlawfully procured. Plaintiffs were acquitted on the trial of the criminal action.

On the trial of the present case Cullinan testified entirely at variance with his former statements. He corroborated in most all substantial particulars the testimony of plaintiffs, to the effect that he, Cullinan, had permitted plaintiffs to take the truck on Saturday; that the certificate of title had not been stolen; that his false testimony to the grand jury and false statements to the state's attorney were dictated by his employer, Thomas Welch; and that he perjured himself because of his desire to keep his job. On the trial he also admitted dictating the letter written to the repairman to whom the truck was taken by James for repairs, which letter is the basis for the libel action, as follows:

'September 10, 1946

'Orlando Auto Top Body Shop

'1512 Roosevelt Road

'Chicago, Illinois

'Dear Sir:

'You are hereby notified that 1937 Diamond T Truck, Motor No. AE 583643 delivered to you, is the property of the undersigned, and that said truck was stolen prior to the time that it was placed in your possession.

'You are further notified to do no work whatsoever on said truck and we demand that you deliver up possession thereof at once.

'Black Kow Bottling, a division of Welch Fruit Products Co. by /s/ James P. Cullinan.'

Cullinan was not represented by counsel at the trial. He was asked on cross-examination, 'Do you have any agreement with counsel that if any judgment is entered against you in this proceeding he will not take action on it against you?' He replied, 'No,' further stating: 'I was party of a bad deal and I would like to get out of it and make it right. That is the only reason I am here at my own time and expense. * * *' Although judgments totaling $21,500 were entered against Cullinan, he filed no motion for new trial or judgment notwithstanding the verdict.

At the trial defendants made an offer to prove by Thomas Welch's sister-in-law, employed in the office of the Welch Company, that on September 7th Cullinan called and told her that the Algozinos had stolen the truck and the certificate of title and inquired whether he should advise Mr. Welch, and that she said, because of Welch's illness from a heart ailment, Cullinan should not bother him; that this witness would further testify to a conversation wherein the witness asked Cullinan for a written statement of the transaction; that Cullinan refused to give a statement, saying that he had gone over to the other side and that he had a release from plaintiffs' attorney who had told him he didn't have to make any statement. A further offer was made to prove by Mrs. Mary Welch that Cullinan said substantially the same thing to her about the promise of release of liability from plaintiffs' attorney. Both offers of proof were refused. The theory of the court in rejecting them was that because Cullinan was a codefendant called as the managing agent of the defendant company under section 60 of the Civil Practice Act (Ill.Rev.Stat.1949, chap. 110, par. 184), it was not competent for his codefendant to impeach him. Defendants maintain (1) that error was committed in rejecting these offers of proof and other documentary proof, (2) that the lower court should have directed a verdict on the libel charge since there was no proof to support it, and (3) that...