Mudd v. Goldblatt Bros., Inc.

JUSTICE RIZZI,

dissenting:

I believe plaintiff was denied a fair trial. I would reverse the judgment entered on the directed verdict in favor of defendant First Baptist Church of Hammond (Church). I would also reverse the judgment entered on the jury verdict in favor of defendants Boy Carriers, Inc. (Carriers), Terry Frankovich and Goldblatt Bros., and remand the case for a new trial as to all defendants.

I will first address the directed verdict in favor of the Church. Plaintiff’s theory is that there was an oral agreement between Carriers and the Church that Carriers would protect the Church’s school buses from vandalism, and that Carriers was, therefore, an agent of the Church for the purpose of protecting the buses. In order to establish the oral agreement and the agency, plaintiff called Charles Perez as a witness. Perez testified that he was employed by Carriers and that shortly before the occurrence he was being trained to become an assistant manager. His immediate supervisor was Richard Ross. Ross told Perez that his job included keeping an eye on the Church’s school buses and chasing away children who might vandalize the buses.

When plaintiff attempted to question Perez regarding an oral agreement that was made in his presence between Ross and the senior pastor of the Church, Reverend Jack Hyles (Hyles), the trial court sustained an objection to the questioning, and plaintiff made an offer of proof. The offer of proof shows that Perez would have testified that he was present during a conversation between Ross and Hyles when it was agreed that Carriers’ employees would watch out for the Church’s school buses and protect them from vandalism. The offer of proof was denied, and the offered evidence was excluded. Since Ross and Hyles denied making the agreement, plaintiff was not able to prove that an oral agreement was made between Carriers and the Church to have Carriers protect the Church’s school buses from vandalism. However, Carriers’ employees did in fact protect the Church’s school buses.

At the conclusion of plaintiff’s case, the trial court directed a verdict in favor of the Church on the basis that plaintiff did not prove the oral agreement between Carriers and the Church and plaintiff did not prove an agency relationship between Carriers and the Church for the purpose of protecting the school buses.

In agreeing with the trial court’s ruling, the majority states: “The record does not establish a prima facie case that Reverend Jack Hyles was an agent with authority to bind defendant First Baptist Church.” I disagree. In my judgment, the trial court erred in excluding relevant testimony by Perez. Plainly, if that testimony had been admitted, then it would have been improper for the trial court to direct the verdict in favor of the Church. Thus, I believe the trial court erred in directing the verdict.

I believe that at the time Perez’ testimony was offered, reasonable persons could have concluded that Hyles had apparent authority to act for the Church with regard to the agreement with Carriers. Apparent authority is such authority as the principal knowingly permits the agent to assume or which the principal holds his agent out as possessing. It is the authority which a reasonable, prudent person, exercising diligence and discretion, would naturally suppose the agent to possess. See Barraia v. Donoghue (1977), 49 Ill. App. 3d 280, 283, 364 N.E.2d 952, 954.

Here, it was undisputed that Hyles was the senior pastor of the Church. Clearly, as senior pastor, he was an agent of the Church. Agency may be established and its nature and extent shown by parol evidence, whether direct or circumstantial, and reference may be had to the situations and acts of the parties, and other circumstances germane to the question, and if the evidence shows one acting for another under circumstances implying knowledge on the part of the supposed principal of such acts, a prima facie case of agency is established. (City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 518, 170 N.E.2d 569, 573.) In the present case, the record demonstrates that Hyles was acting for the Church as its senior pastor under circumstances implying knowledge on the part of the Church. Thus, a prima facie case of agency plainly existed.

Since Hyles was an agent of the Church, one could reasonably conclude that within the realm of that agency, as senior pastor of the Church, he had apparent authority to make the agreement involved in this case. It is hard to imagine how a church could function if its senior pastor did not have apparent authority to make such an agreement. It is unreasonable to presume that such agreements could only be made en masse by the congregation or by the Board of Deacons of the Church. In this regard, it must be kept in mind that we are dealing here with apparent and not actual authority. The extent' of Hyles’ actual authority is not involved here.

In my judgment, the difference I have with the majority on the issue of apparent authority is significant, and the ramifications of the majority opinion could substantially affect the operation of religious schools, churches and temples within Illinois. If a senior pastor, priest or rabbi does not have apparent authority to make the agreement involved here, he would likewise not have apparent authority to make agreements to have religious school buses repaired, to order basic supplies or food, or to place other orders and make other agreements that are necessary for the day-to-day operations of the religious school, church or temple. I fail to see how a religious school, church or temple could effectively operate under the restrictions that could develop by virtue of the majority opinion.

The majority seems to find it significant that Hyles stated during his voir dire examination that making such agreements was not part of his responsibilities. I find no significance in Hyles’ statements because here we are dealing with apparent authority and not actual authority. Moreover, Hyles’ statements that he did not make the agreement would only have gone to the weight to be given Perez’ testimony and not to its admissibility. The jury was not required to believe the Church’s evidence and disregard plaintiff’s evidence.

The majority’s conclusion regarding the exclusion of Perez’ testimony seems to be based on the premise that plaintiff was required to prove that the Board of Deacons expressly gave Hyles authority to make the agreement or that the Board of Deacons ratified the agreement. I know of no legal principle which supports that conclusion. In fact, the cases cited in the majority opinion seem to require an opposite conclusion, since they support the propositions that apparent authority is sufficient authority to establish an agency relationship and that the nature and extent of the apparent authority may be established by parol evidence, whether direct or circumstantial. (See Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 343 N.E.2d 207; City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 170 N.E.2d 569; Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1076; Wing v. Lederer (1966), 77 Ill. App. 2d 413, 222 N.E.2d 535.) To illustrate, in Kapelski, the court stated: “Thus, in order to introduce a statement or act by an agent or employee as an admission it must first be shown (1) that he was such an agent or employee [citation], (2) that such statement or act was made or done in and about a matter over which he had actual or apparent authority [citation], and (3) that he spoke or acted under or by virtue of his authority as such agent or employee [citation].” (Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 42, 343 N.E.2d 207, 210.) Here, the record clearly evinces that at the time Perez testified (1) there was no question that Hyles was an agent of the Church, (2) a reasonable person could conclude that within that agency, as senior pastor of the Church, Hyles had apparent authority to make an agreement for security services for the Church’s school buses, and (3) that Hyles spoke or acted under or by virtue of his authority as such agent of the Church.

For the reasons stated, I believe the excluded testimony of Perez was admissible. It was relevant and was admissible as an admission as well as to prove a legally operative fact of plaintiff’s cause of action against the Church, i.e., that an oral agreement was made between Carriers and the Church to have Carriers protect the school buses from vandalism. (See D. Louisell, J. Kaplan & J. Waltz, Evidence 87, 88 (4th ed. 1981).) If the testimony had been admitted, it would have been improper for the trial court to direct a verdict in favor of the Church. Therefore, the trial court erred in directing the verdict.

Next, I will address the jury verdict in favor of the remaining defendants. I believe the judgment on the verdict must be reversed because of the trial court’s error in requiring plaintiff to prove as an essential element of his case that he was free from contributory negligence. The record manifests that defendants freely pounded away on the fact that freedom from contributory negligence was an essential element of plaintiff’s cause of action which plaintiff did not prove. The truth is, however, that freedom from contributory negligence was not an essential element of plaintiff’s cause of action. The unfairness of what occurred is obvious.

This entire occurrence took place in Indiana, all the factual witnesses lived in Indiana, and Indiana has the most significant contacts with the action. Therefore, the trial court correctly ruled that the substantive law of Indiana should apply. Under the law of Indiana, freedom from contributory negligence is not an essential element of a plaintiff’s cause of action based on negligence. Yet, throughout the trial the trial court adopted the position that plaintiff could not recover unless he proved that he was free from contributory negligence, and the court instructed the jury accordingly. Thus, to me, it is plain that the trial court committed reversible error because it changed the substantive law which is the basis of plaintiff’s cause of action.

In agreeing with the trial court, the majority is laboring under the misconception that the issue in this case merely involves a procedural aspect of the trial. However, the issue in this case really involves the essential elements of plaintiff’s cause of action. The issue must therefore be controlled by the substantive law of Indiana and not the procedural law of Illinois.

In Indiana, the requisite elements of a negligence action are (1) existence of a duty on the part of a defendant in relation to the plaintiff, (2) failure of the defendant to conform his conduct to a standard of care demanded by such duty, and (3) injury to the plaintiff proximately resulting from such failure. (Old Town Development Co. v. Langford (Ind. App. 1976), 349 N.E.2d 744, 781.) Plainly, freedom from contributory negligence is not an element of the cause of action, and it therefore cannot be grafted on as an element of the cause of action by an Illinois procedural rule dealing with burden of proof. Moreover, it is axiomatic that in Illinois, the party asserting a claim or defense has the burden of proving all the essential elements of the claim or defense. Here, the essential elements of plaintiff’s claim do not include freedom from contributory negligence. It was defendants who claimed that plaintiff was guilty of contributory negligence. If defendants had not raised it, contributory negligence would not have been an issue in the case. Thus, even under Illinois procedural rules, it was defendants who had the burden of proving that plaintiff was guilty of contributory negligence since they raised it as an issue. Common sense tells us that a party cannot raise an issue and then require the other party to disprove it.

The majority relies mainly on Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265. In Babcock, the court held that under Michigan law the burden of proof on contributory negligence was a procedural law designed to regulate the conduct of the trial. Babcock did not involve the law of Indiana, and it did not involve the essential elements of a negligence action under Indiana law. Therefore, I do not find Babcock applicable. Moreover, to the extent that the rationale in Babcock is contrary to what is expressed here, I cannot accept the rationale in Babcock.

For the reasons stated, I believe the trial court erred when it required plaintiff to prove that he was free from contributory negligence before he could recover. Freedom from contributory negligence was not an essential element of plaintiff’s cause of action, and he should not have been required to prove that which was not part of his claim. Since it was defendants who claimed that plaintiff was guilty of contributory negligence, they should have been required to prove it.

Accordingly, I believe plaintiff in this case was denied a fair trial. I would reverse the judgments in favor of defendants and remand the case for a new trial as to all defendants.