concurring in part and dissenting in part:
There are several things about the majority opinion that cause me concern. It is not clear, from the record or the opinion, whether compensatory damages were assessed in favor of the plaintiff on the basis of Byford’s negligence, or on the basis of his willful and wanton misconduct. If damages were assessed on the basis of willful and wanton misconduct, was the jury’s 15% offset against these damages, because of plaintiff’s misconduct, a finding that the plaintiff was guilty of willful and wanton misconduct, or was it a finding that plaintiff was guilty only of negligence? If the plaintiff was guilty of contributory willful and wanton misconduct, the question arises as to whether any punitive damages can be assessed in her favor against either of the defendants. Since the majority opinion is based primarily on the pleadings and procedural default, and in view of the uncertainties contained in the record, the opinion should not be viewed as an affirmative holding on the above questions.
I also question the propriety of the holding of the trial court and of the appellate court that the answer filed on behalf of both defendants constitutes a judicial admission of agency. I address the reason for this concern later. However, since the opinion disposes of this question on the basis of procedural default, and since the evidence indicates that an agency did exist, I do not dissent from this holding of the opinion, but I again state that because of the nature of the determination of this question, the opinion should not be taken as precedent on this point.
I dissent from that part of the opinion that holds that punitive damages were properly assessed against defendant SRP Associates. The basis of this holding is that the answer, which was filed, admitted that Byford was an agent and was the manager for SRP Associates. The opinion notes that section 217C of the Restatement (Second) of Agency (1957) allows the imposition of punitive damages against the principal when “the agent was employed in a managerial capacity and was acting in the scope of employment.” (Restatement (Second) of Agency §217C (1957).) The trial court and the appellate court held that the answer filed constituted a judicial admission that Byford was an agent acting in a managerial capacity. However, the answer that was filed was not filed by or signed by SRP Associates. It was filed by and signed by Byford, the alleged agent. Thus, the agency and the agent’s role as a manager have been founded on an assertion of the agent. I indicated above that I do not object to the ultimate finding of agency, because there was evidence at the trial that indicated Byford was an agent. However, there was no evidence at the trial, and there is none in the record, that supports the conclusion that Byford had any managerial duties or authority. The conclusion that he was employed in a managerial capacity is based solely on the answer that was filed by By-ford. Not only is there no evidence that Byford was employed in a managerial capacity, but there is in fact evidence that he was not so employed. Byford so testified, as did Mazhar, the managing partner of SRP. Furthermore, Byford testified that when he signed the answer to the plaintiff’s complaint, he did not realize the import of the answer. There is also no evidence that By-ford had any authority to sign.the answer as an agent for SRP.
I do not think the plaintiff can establish Byford as the manager for SRP by the mere assertion of the alleged manager that he occupied that capacity any more than a plaintiff can prove agency by the assertion of the agent. An agent cannot confer power upon himself. See Mitchell v. McEwen Associates, Inc. (1935), 360 Ill. 278; Merchants’ National Bank v. Nichols & Shepard Co. (1906), 223 Ill. 41; Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37; 4 A. Wigmore, Evidence §1078, at 176 (Chadbourn rev. ed. 1972); McCormick on Evidence §267, at 642 (2d rev. ed. 1972).
Although Byford’s answer may have constituted a judicial admission as to Byford, it is but a hearsay declaration as to SRP that has been contradicted by the only evidence on the question of whether Byford occupied a managerial position. I therefore dissent from that part of the opinion which affirms assessment of punitive damages against SRP Associates.
JUSTICE WARDjoins in this partial concurrence and partial dissent.