Thieme v. Macarthur

• Decision Date: 05 May 1936
• Docket Number: Gen. No. 9035.
• Court: United States Appellate Court of Illinois
• Parties: THIEME v. MACARTHUR.

285 Ill.App. 242

1 N.E.2d 514

THIEME

v.MACARTHUR.

Gen. No. 9035.

Appellate Court of Illinois, Second District.

April 3, 1936.

As Modified on Denial of Rehearing May 5, 1936.

Appeal from Circuit Court, Kane County; F. W. Sheperd, Judge.

Suit by Paul Thieme against John D. MacArthur and others, dismissed as to defendants other than named defendant. From a judgment against him, named defendant appeals.

Affirmed.

Arthur L. Paulson, of Elgin, for appellant.

B. J. Knight and J. E. Goembel, both of Rockford (Perley T. Lupton, of Decatur, of counsel), for appellee.

DOVE, Justice.

This is a suit brought against the Marquette Life Insurance Company, Harry Getzelman, and John D. MacArthur to recover damages for malicious prosecution. The complaint charged that on June 16, 1933, MacArthur and the insurance company caused Getzelman to appear before a justice of the peace of Kane county and file a complaint charging the plaintiff with having obtained money from Getzelman by virtue of the confidence game by conspiracy; that Getzelman was aided, abetted, and persuaded in so doing by the other defendants; that they all acted falsely, maliciously, and without any reasonable or probable cause; and that, as a result thereof, a warrant was issued and the plaintiff was arrested and imprisoned for 36 hours. The complaint then charged that he (the plaintiff) suffered anguish and pain in body and mind and injury to his credit and reputation, and that he expended $500 in procuring his discharge from said imprisonment. It was then alleged that the cause in the justice court was continued from time to time and was finally terminated, having been dismissed on September 8, 1933, for lack of sufficient evidence.

The answer filed on behalf of all the defendants denied the allegations of the complaint and averred that Getzelman made a full and complete disclosure of all the facts to the state's attorney of Kane county, and upon his advice, and without the aid and persuasion of MacArthur, and without malice, Getzelman made the complaint upon which the warrant for plaintiff's arrest issued. A jury was waived, and the issues made by the pleadings were submitted to the court for determination. During the progress of the trial, the suit was dismissed by the plaintiff as to the insurance company and Getzelman, and the cause proceeded against MacArthur, resulting in a judgment against him for $2,750, and the record is in this court for review.

In Glenn v. Lawrence, 280 Ill. 581, 117 N.E. 757, 759, the law on the subject of malicious prosecution was summed up as follows: “The facts which will sustain an action for malicious prosecution are (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff.”

In the instant case it is insisted by appellant that the evidence discloses (1) that he was not responsible for the criminal proceeding; (2) that there was not a bona fide termination of that proceeding, but that it was dismissed in the justice court as the result of an agreement between counsel for appellee and the state's attorney; (3) that appellant was not actuated by malice; (4) that there was probable cause for the commencement of the criminal action; (5) that the advice of the state's attorney was followed after a complete disclosure of all the facts; and finally (6) that the judgment is excessive.

The evidence discloses that appellant is the vice president of the Marquette Life Insurance Company, and appellee and one John Perry are former agents and employees of said company. In August, 1932, Perry successfully solicited Getzelman, who is a farmer living in Kane county, to become a policyholder in said company, and the company issued to him seven policies, one each upon the life of himself, his wife, and their five children. The total initial premiums upon these five policies aggregated $204.90, and for this amount Getzelman executed his note dated August 2, 1932, to the company and gave it to Perry. This note became due, according to its terms, 60 days after date. At the same time the note was executed Getzelman gave Perry his check for $30, and this amount was indorsed on the note. Appellee was not presént and had nothing whatever to do with procuring Getzelman to become a policyholder in the company and knew nothing about the policies having been written until he was told about it at the Chicago office of the company by MacArthur. Appellee at that time was in the employ of the company, and had been since March, 1932. On September 16, 1932, Perry was discharged by the company, but was re-employed by the company a short time later, but did not remain in the employ of the company very long, but was again discharged. Appellee was directed by appellant, acting for the company, to look into the business which Perry had written, and Getzelman was one of the policyholders appellee was directed to see. Appellee called upon Getzelman at his home, and on January 12, 1933, went with him to Chicago; their purpose being to obtain the return premium on a policy of Getzelman in another company which had been canceled and apply that return premium upon the note of Getzelman to the Marquette Life Insurance Company. A call was made at the office of the other insurance company, and Getzelman and appellee were informed that the money would be ready for payment by February 15, 1933.

According to Getzelman's testimony, appellee told him, on January 12, 1933, that Perry was back working for the company, and that it would be all right to pay his note, which the company held, to Perry. Getzelman further testified that Perry, accompanied by appellee, was at his (Getzelman's) home in February, March, and also in April, 1933. Appellee denied that he told Getzelman, in January, 1933, that Perry was again in the employ of the company and denied that he told Getzelman that it would be all right to pay him the note, and stated that he did not remember whether he and Perry called at Getzelman's home in February, March, or April, 1933, but testified positively that he had no dealings with Perry after October 9, 1932. On May 31, 1933, Perry, not accompanied by appellee, drove to Getzelman's home and requested Getzelman to pay the note. Getzelman had his wife draw a check upon his account for $179.40, making the same payable to the order of Perry, and this check was delivered to Perry by Getzelman. Perry promptly cashed the check, appropriated the proceeds, and disappeared. On June 16, 1933, appellant called upon Getzelman and asked him about paying the company the note, and was informed by Getzelman that it had been paid to Perry, and Getzelman exhibited to appellant his check of May 31, 1933, which had been delivered to Perry. In reply to appellant's request as to why he had paid Perry when the company had instructed him not to do so, Getzelman testified that he said it was because appellee had said it would be all right to do so, and he (Getzelman) then told appellant of the visits of Perry and appellee to his home. Getzelman then asked appellant why the note was not returned to him, and appellant advised him that the company had not received the money from Perry, and that the company would have to look to Getzelman for the money due thereon. Getzelman further testified that he then inquired of appellant what he should do and appellant said he (Getzelman) would have to get a warrant out for appellee or pay the note, and appellant suggested seeing Mr. Carbary, the state's attorney about procuring the warrant. Appellant then drove Getzelman to Elgin and accompanied him to the office of Mr. Carbary.

The evidence is conflicting as to what occurred at the office of the state's attorney. All agree that appellant did practically all the talking; Getzelman said but little. Appellant testified that he told Mr. Carbary that his only source of information was Getzelman, and that he (appellant) told the state's attorney what Getzelman had told him and that he made no misrepresentations. Mr. Carbary, the state's attorney, testified that he was told by appellant that Perry and appellee had been to Getzelman's farm on different occasions and were together at the time Getzelman paid his note to the company by delivering to Perry his check on May 31, 1933; that this check for $179.40 was shown to him, and he was told that Perry and appellee had conspired to obtain the money represented by that check from Getzelman by means of the confidence game; that he was also told that Perry and appellee had been employed by the company, but that some time previous to that time they had both been discharged, were not agents of the company, and had no authority to collect the money; that appellant said appellee had been discharged by the company 3 or 4 months before; and that he was a rascal. Mr. Carbary further testified that, had he known that appellee had nothing to do with Perry in securing the check from Getzelman, he would not have authorized the issuance of the warrant; that he (Carbary) knew none of the parties involved, and knew nothing of the facts, except what he learned from appellant and Getzelman, and that he did not think Getzelman said “over a line” all the time they were in his office. Getzelman testified that appellant told the state's attorney that the statements he was making were those gotten from Getzelman that morning, and that all appellant knew was what Getzelman had told him, and that appellant did not say that appellee and Perry were both at Getzelman's farm when the check was given.

A. J. Strickman, the justice of the peace, testified that before issuing the warrant appellant and Getzelman...