People Ex Rel. Carey v. Lincoln Towing Service, Inc.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. JUSTICE PUSATERI

delivered the opinion of the court:

The defendants’ first contention in their petition for rehearing makes an incorrect statement that the plaintiff State’s Attorney alleged in his complaint the conclusion that Lincoln tows cars without the consent of the vehicle owner. We have again reviewed the complaint in the case at bar, and there is no such allegation. In that some of the subsequent questions posed by the defendants in the petition for rehearing are based on the premise of this inaccuracy, we do not address ourselves to these questions in this opinion.

Regarding defendants’ request that this court amend its opinion to permit Lincoln to show on remand that the owners of the automobiles which it tows gave their consent to the imposition of a lien, we conclude that such a request is not well founded and cannot be granted. Kunde v. Biddle (4th Dist. 1976), 41 Ill. App. 3d 223, 353 N.E.2d 410; Murrell v. Trio Towing Service, Inc. (Fla. App. 1974), 294 So. 2d 331; Younger v. Plunkett (E.D. Pa. 1975), 395 F. Supp. 702.

We next address ourselves to defendants’ contention that this court has erroneously assumed that Lincoln Towing does not have a possessory lien on the vehicles it tows; the aforementioned authorities also substantiate that the towing of an automobile from a private parking lot at the request of a person other than the owner or lawful possessor of the vehicle does not create a possessory lien against the vehicle.

The petition for rehearing states that this court’s opinion appears to hold that any isolated incident of wrongful conduct would subject a corporation to forfeiture of its franchise under the Quo Warranto Act. (Ill. Rev. Stat. 1973, ch. 112, par. 9 et seq.) In this regard it is to be noted that the original opinion lists the allegations of the eight affidavits submitted as exhibits and attached to the complaint, which allegations indicate a consistent course of tortious conduct over several years, a series of tortious incidents, and not any isolated tortious incident as being the wrongful conduct fhat would subject Lincoln to forfeiture of its franchise under the Quo Warranto Act (Ill. Rev. Stat. 1973, ch. 112, par. 9(e)). People v. White Circle League (1951), 408 Ill. 564, 97 N.E.2d 811.

Defendants’ petition for rehearing makes an additional misstatement of fact when it states that the question of the power to fine the defendant corporation under the Quo Warranto Act (Ill. Rev. Stat. 1973, ch. 112, par. 14) was gratuitously injected as an issue and was not presented by plaintiff’s complaint. The prayer for relief contained in count I of the complaint prayed for a cotut ordered ouster or a fine. (Emphasis added.)

Concerning defendants’ contention that this court has failed to consider in its opinion the effect of the intervening ordinance of the City of Chicago regulating towing companies and the assumption of jurisdiction by the Illinois Commerce Commission, we conclude that the consideration of same would not and does not change the opinion of this court regarding the matters here in issue. Kunde; Younger.

Regarding defendants’ contention that the court’s opinion could be mistakenly interpreted to put the burden of proof upon the defendant, our courts have held that the People may call upon a corporation at any time to disclaim or justify the manner in which it transacts business (People v. White Circle League (1951), 408 Ill. 564, 97 N.E.2d 811; People v. United Medical Service, Inc. (1936), 362 Ill, 442, 200 N.E. 157), and the burden is upon the defendant in a quo warranto action to disclaim or justify its actions. People ex rel. Ray v. Lewistown Community High School District No. 241 (1944), 388 Ill. 78, 57 N.E.2d 486; People ex rel. Henderson v. Redfern (4th Dist. 1966), 75 Ill. App. 2d 196, 220 N.E.2d 323.

We believe that the other contentions of the defendants in its petition for rehearing have been considered clearly and sufficiently in the original opinion. The petition for rehearing is denied and the finding of the original opinion is affirmed.

Petition for rehearing denied; judgment affirmed.

STAMOS and PERLIN, JJ., concur.