*1
sentencing
only
shows that
after
judge
reached his decision
considering
the nature
circumstances of the offense and the amount
1975,ch.
(See
of the heroin
Ill. Rev. Stat.
delivered
defendant.
56*2,par. 1411.)
clearly
trial
showed
evidence at
that defendant
required
delivered
six times
minimum
make the
over
amount
56*2,
felony.
Stat.
ch.
(Ill.
par.
offense
Class
Rev.
Therefore,
be said
trial
its
cannot
that the
court abused
discretion
Rodriguez (1978),
7 to
imposing
years.
People
sentence of
See
Affirmed. ROMITI,
JIGANTI, J., J., P. concur. al., CORP. et Plaintiff-Appellant, v. AREA PUBLICATIONS MAKIS, PAUL Defendants-Appellees. Division) (4th 78-1695
First District No. Opinion filed October *2 ROMITI, J., dissenting. C. Marilyn Longwell, Chicago, appellant. Hickman and F. both of for
James Proctor, Gunnels, (Don Reuben, & Chicago Reuben H. and Lawrence Fifer, counsel), appellees. Samuel for
Mr. LINN the court: opinion delivered the JUSTICE Plaintiff, Makis, in Paul instituted a libel action the circuit court of defendants, County against Cook Corp., Area Publications d/b/a Tribune, Suburban Sue William Guist. trial court Treiman and The plaintiff’s complaint dismissed a cause prejudice with for failure to state upon of action which granted. relief could be presented by The issue of his plaintiff’s appeal from the dismissal complaint allegedly published is whether the libelous article susceptible Suburban Tribune is We find of an innocent construction. it is and affirm the trial court. 25,
On published October an article the Suburban Tribune article, “Flight general, entitled School Thin Air.” The Vanishes Into sky operation concerned the involvement of and others maliciously and sailing complaint alleged school. The that defendants wrongfully article, published totally regard that it was false with plaintiff, job manager of a and that as result lost his as the sporting goods injury reputation store and suffered to his and credit. language in article complaint specify particular
The did entirety, In its the article states: claimed to be libelous. Thin Air
“Flight Vanishes Into School accident, plain argument, just an an crime It could have been sky sailing Prospect in Mt. prompted the owners of a school flight take this summer. reasons, and though, the three who owned
Whatever Av., School, Prospect W. left a Sports Winds managed the Four shut down the storefront people number of the lurch when disappeared. school street, up *500 ran bills
They borrowed from butcher down door, hundreds of dollars printing shop accepted at the next money thinking they’d sky paid from would-be sailors who their They sky sailing get sky sailing lessons and never did. also sold equipment. Prospect investigating Mt. clerk’s office is store, say applied village never business license which officials resident, paid who repeated warning letters. And a local despite received, hang she never has turned gliding *50 for lessons attorney general’s pro- consumer complaint over to the Illinois tection bureau. lessons, lodged *50 have persons, paid
At least six who for the commerce, village which turn is complaints with the chamber working city tracking clerk’s office down owners. *3 are. theories have nobody But knows where the owners Three shortly after explain disappearance been advanced to their sudden July 4. one, only Naffziger, Steven shop,
Of the three co-owners of the unincorporated County Cook near Quarter of 6-a Dundee Palatine, number. Paul Makis working phone still maintains a Snook, of phone has had his disconnected. David Hoffman Estates Boardwalk, ‘malfunctioning phone,’ Elk has a Village, Grove according to Illinois Bell. Ltd., W. said she Prospect, manager
At Sound Post after one of them thought the three shut down their business ‘AllI sky sailing suffered a accident. know is one of serious accident,’ manager said badly injured men was an the store’s Friday. reportedly Snook suffered a in a 1974 broken neck skysailing crash.
William Barthel, ‘Bud’ owner People’s Choice Meat Market, 105 W. Prospect, said the business was shut down because the owners quarreled among themselves.
‘The partnership They dissolved. had a fight quit,’ and business, personal Barthel said. Barthel made a *500 but loan to the says he he’s getting money not worried about back. nature,’
‘I faith in have human Barthel said. He that he has added complaints operation directed about the the Mt. since then to Prospect Chamber of Commerce. O’Donnell,
But Kevin an deputy village clerk and assistant village in Mt. manager Prospect, theory. has a different
‘They planned building, could have a short-term tenure in the business, built up money,’ speculated. and then left with the he pieced together likely operating O’Donnell said he method pair may in. complaints have used from the that came O’Donnell, According sky sailing the store advertised its lessons in newspapers. local patrons sky sailing
Interested would be shown a short film on informally sport. and would talk with store owners about Then sign up They the three owners would students for the *50lessons. lessons, store, promised ground given school to be at the and several tries the air at Warren Dunes Sawyer, State Park near Mich. persons
Several they told O’Donnell ‘ground received their school training,’ in reality a short session familiarizing devoted to students sky sailing equipment. sky sailing But the sessions got never ground. off the
Ann Graham of Schiller Park paid said she and her niece *50each for kept the lessons but getting turned down for their sessions at the Warren Dunes. Finally pair only went back to Four Winds they they to be told get they couldn’t the lessons hadn’t because scheduled for the class in advance. there, way
‘We went all the guys, out found the still lessons,’ give wouldn’t us the Graham said. She turned over a complaint about the unfinished lessons to attorney general’s Mary office last week. Wollney, Rd., Lois 140 S. Hawthorne Barrington, tried on two occasions flying to schedule the lessons and were turned down. Their teachers said the weather was ‘wrong’ sky sailing. time, there, and, case,
‘The first we driving started out just we stopped and called at They an oasis. told us it It windy was too out. here, all,’ could have been there but was beautiful at windy *4 Lois Wollney said.
Neither city the clerk’s sky sailing pupils, office nor the nor neighboring storeowners are sure what happened to the three since down, the business closed about the Only second week in July. owners, Snook, seeing one of the David since reported Barthel then. village that the has its hands tied
But O’Donnell admits they pull a business license can on the They matter. don’t have store, proprietors, any complaints and haven’t can’t find the monetarily enough filing charges. warrant criminal big said, building village policeman
In and later a July, O’Donnell empty. Neighbors report the inspector completely found the office pay store after the owners failed to business was evicted from the the rent. sky-sailing may trio’s antics have reached Wollney
Lois said the to the Warren Dunes. rangers at the dunes told her the three had rented
She said forest at sky sailing and advertised lessons the dunes motel room Prospect persons] in Mt. for interested [giving phone their number said, Then, rangers sign posted with a outside the room. room, they which paying three took off without months, according Wollney. arranged to rent for a number of County police, which covers the The Berrien sheriff’s [Ind.] Area, any Friday they said hadn’t received Warren Dunes also complaints Rangers about the Four Winds owners. the area scheme.” said hadn’t heard 45 of complaint pursuant to dismiss the to section Defendants moved 45), (Ill. par. Act Rev. Stat. ch. on the the Illinois Civil Practice as a matter of law under the that the article was nonactionable grounds allege complaint and that the failed rule of innocent construction dismiss was Defendants’ motion to damages particularity. with sufficient prejudice the action with granted dismissing and a final order entered.
Opinion incapacity per requires charge
An a serious action based on libel se proof of obviously naturally so hurtful that or misconduct words (1978), 66 Ill. dispensed (Sloan v. Hatton injurious their character with. Chicago Sun-Times Bontkowski App. 3d if 229, 252 per A is libelous se false statement crime; (2) infection with (1) commission of a imputes to the disease; integrity performing (3) or want of a loathsome unfitness business, ability (4) or lack of employment; duties of an office or 260, 371 v. Cincotta profession. trade or Bruck N.E.2d 874. language falls within one determining challenged
In whether a whole article is to be read as recognized categories, “the more of these
457
*
s °
meaning,
given
and the words
their natural and obvious
words
allegedly
capable
being
innocently
libelous that are
of
read
must be so
(John
read
declared
as a
of
v.
and
nonactionable
matter
law.”
Tribune
108, cert.
105,
437, 442, 181
(1962),
(1962),
Co.
24 Ill.
N.E.2d
371
2d
denied
877,
114,
L.
U.S.
9
2d
“Illinois applied courts have the innocent construction standard consistently logical and with For predictability. A news instance: story reported bawdy the of a keeper house had an alias identical plaintiff’s with it name and was held non-actionable as a matter of
law the story because did not possible under all constructions keeper [citation]; indicate was the as a matter of law was held that an agent insurance had not been libeled because he was a ‘lousy [citation]; described as a agent’ deputy circuit clerk was by being ‘political not libeled called a [citation]; hack’ school principal had no cause of action for slander because he had been called not qualified to be a principal disgrace pro- and a his [citation]; fession story business executive was by not libeled nationally magazine circulated that he manager’ stated was no [citation].”
The appellate court is not appropriate the forum to seek a change this well-established of rule law.
Plaintiff falsely imputes contends the Suburban Tribune article crime, him particularly the commission of a Plaintiff has fraud. not specified relies, language upon reading which he but from our only article the passage arguably suggests which criminal is conduct accident, found in following “It sentence: could have an an been 0 ® ® argument, or just plain that prompted crime the owners to take flight se, this Although summer.” per to constitute libel accusations need not state the commission par of a crime in terms of or art with the Lines, ticularity of an (Zeinfeld Hayes indictment Freight Inc. 41 Ill. to crime in this 217), generic reference case is an susceptible innocent construction and nonactionable as law, possible explana matter of it is one of only because offered as three tions closing sky-sailing for the school. The word “crime” Read
is “could have been” sentence. conditioned words article, criminal is suggestion conduct context of the entire any criminal merely impute specific act hypothetical does Co. v. plaintiff. Realty Homestead Stack conduct to See ability him lack of charges that the article Plaintiff also contends generally on integrity in his business or trade. This contention based sky-sailing owners took suggesting school statements the article bills, provide, pay failed to closed money for lessons which did not school, point any specific disappeared. Again does not support charge. language to of a business outstanding and the failure
Allegations debts injurious person’s reputation to a necessarily venture are neither *6 dealings. (See v. nor of lack in business Lowther integrity indicative of 902, 357.) The College (1978), App. North Central 60 Ill. N.E.2d is innocent closing sky-sailing capable school of several of business, or capital lack economic explanations, including of insufficient Co. (See Chicago Wexler v. Tribune beyond factors the owners’ control. 610, 387 The Tribune article (1979), N.E.2d Suburban explanations for the equally and reasonable plausible offers two among the injury dispute of the owners or a occurrence —an to one construction, closing of innocent partners. Applying the rule conditions, school, is questionable albeit under sky-sailing of the keeping with the tenor and in susceptible to an innocent construction therefore, and, matter of law. is nonactionable as a content of the article support special allegations complaint to being no There complaint is dismissing plaintiff’s of the circuit damages, the order court therefore, is, by to raised unnecessary affirmed. It reach other matters of trial court’s determination. support defendants Affirmed. J.,
JOHNSON, concurs. ROMITI, dissenting: Mr. JUSTICE innocently construed article can be agree I that this Because cannot support of I other contentions because find no merit defendants’ and dissent. respectfully I must judgment, trial court’s operated owned and plaintiff this is told The reader of article people A of number were offered. sky-sailing lessons business which partners Plaintiff and them. received paid but never for these lessons place of business their evicted from shop, were up printing bills at a ran they a motel room rent, pay for also failed to and nonpayment to advanced three theories their business. One rented to conduct to planned was that disappearance subsequent their explain money. with and then leave a short term business over up build not was is that statements implication of these inescapable The his customers’ affairs, irresponsible his business was manage to able in his business. incurred obligations financial did not honor money, and clerk, accusing plaintiff by deputy theory advanced Moreover the imputes money, with the and then leave up the business planning to build that his latter The fact affairs. dishonesty in his business him an act of it make does not advanced of three theories only one charge required, matter is not defamatory A positive assertion nonactionable. yet remain allusion, and insinuation, irony, by question may (Maclaskey stated. directly though positively defamatory as as & Prac. Ill. L. 33A Mecartney Furthermore, explanations these other (1970).) Slander and Libel §12 business; they do closing of the for the only possible reasons fact relate disappeared. owners explain why the the innocent- the merits of debate parties appeal on Although the it,11 find it to be do not urges us to abandon rule construction supreme court’s has cited our majority in this cause. applicable Ill. 2d summary rule in v. Tribune Co. John 83 S. Ct. U.S. 9 L. Ed. 2d (1962), 371 cert. denied giving be some conflict between Although may appear there finding time meaning and at the same natural and obvious words their read, apparent conflict if so capable being them nonactionable words are the test to be whether satisfactorily by construing resolved v. Schwartz Moricoli an innocent construction. reasonably susceptible of *7 (1977), 46 Ill. 361 N.E.2d App. 3d previously statements ambiguity meaning I find in the of the
Here no discussed, in the meaning changed nor is when viewed context their Thus, entire this is case in which the innocent construction article. not a which are must effect of statements rule be invoked to determine the Indeed, such an innocent ambiguous. have not advanced defendants were not the statements they construction. Rather contend that because regional as specifically plaintiff employment of his about the behavior 1 purpose mitigate Plaintiff contends that because a central of the doctrine has been to liability (Note, the harsh effect of strict in defamation The Illinois Doctrine of Innocent One, Minority (1963)), longer Construction: A U. of 30 Chi. L. Rev. 524 it is no needed now (Gertz liability v. Robert that without fault in defamation has been ruled unconstitutional. Welch, 323, 41 L. (1974), 789, 94 (1975), Inc. Troman v. Wood 418 U. S. S. Ct. 62 Ed. 2d 292.) agree majority properly only Ill. 2d I with the that this contention can by Supreme be resolved the Illinois Court. 460
manager sporting goods of a retail business could not have him in I find in this prejudiced occupation. that no merit contention. by defamatory cases not hold that statements cited defendants do prejudicing plaintiff employment merely in his are nonactionable job by held him. those they specifically because related to another Rather prejudice cases involve that no to the in his determinations job employment plaintiff’s resulted because the defamation did not affect 15,47 (Hudson (1943), v. Ill. App. abilities Slack Furniture Co. 318 N.E.2d v. (ability telegraph operator pay personal bills); his Hambric 355, 196 Enterprises, (1964), App. (plain Field Inc. 46 Ill. 2d N.E.2d 489 tiff his business but allege injury business)), failed to to his or related to injure (Hambric (alternative holding report strip-tease did not an innocent injurious business)), subject bar was not to such a or was (Valentine v. North American Co. & Health construction Life (1974), (“lousy agent” 60 Ill. could have Insurance N.E.2d Chicago merely unsatisfactory agency relationship); described Wexler (statement Co. 69 Ill. Tribune fortune, necessarily by attorney, had dwindled not managed client’s attorney)). statement that loss attributable to the 55, 57, 31N.E.2d In Chicago Cobbs v. Defender being investigated that a minister was newspaper reported ” “ no There was ‘unsavory proportions.’ incident of serious concerning an of his activities as arose out specifically indication that the incident having minister, importance to minister but the court noted per the article se. This is and thus found libelous spotless reputation purpose making category this of defamation illustrative of se, per protect reputation. distinguish To between actionable business employment in his defamatory prejudice two statements which one specific arising of that merely because one concerned actions out activity would another business employment the other concerned contrary protective purpose. to this engaged to the other as necessary
“It is that the defamer refer if the enough It is calling question. particular profession one disparaging of particularly a character to be statement ** (Second) of occupation (Restatement an engaged such §573, e, Torts, (1977).)” at 194 Explanatory Notes comment to a importance is of spotless personal reputation professional as a Just minister, responsibility reputation dealings so is a for honest business to one important in financial matters customers and creditors towards irresponsibility with customers’ imputing engaged business. This article debts, professional and dishonest money, failure to honor enterprise operated owned and in one business behavior manager of regional him in as a per employment libelous of se
461 found the articles distinguishable It is from clearly another business. College (1978), Lowther v. North Central 3d App. 60 Ill. in nonlibelous Lowther 902, In 357, majority. by 377 N.E.2d a case cited the basis of sued for libel on college professor psychology was a who because position that from her tenured stating articles she was fired college to the pay to its rent research foundation that she ran had failed her, to the signed by (later good), and had issued bad checks made professional injury to her college. alleged Plaintiff’s suit was based on as a teacher and the court “financial found that her reputation In this any incompetence. professional embarrassment” did not indicate in his a businessman allegations cause the concern the behavior management of another venture. for the possible explanations majority opinion provides several to the do not relate
closing flight explanations school. But these disappearance specific allegations concerning plaintiff’s in the article explanation with no pay obligations failure to debts and meet business Accordingly, agree him I cannot by parties. offered to the affected basis affirmed on the majority judgment that the trial court’s should be of the innocent-construction rule. three was one of
But defendants contend that because directly can attributed wrongdoing owners named in the article no be News, Chicago Daily Inc. Latimer v. article, (1947), him citing from that Latimer 295, lawyers represented 71 553. In 23 App. charges. published report A total of 30 defendants on Federal sedition being represented the trial spoke political gangsterdom” of “the scum of (Latimer, 295, Ill. 330 group lawyers described as “craven.” there were 553.) 71 N.E.2d in the it was stated Later article (Latimer, 330 “despicable among characters the defendants.” 295, 298, in it was unclear 553.) this context The court held thus group, language lawyers whether to all of the referred every clearly referred to distinguishing those cases in which an article of a that defamation group appear member. Defendants do not contest group where can group may applicable be to individual members of group. (Crosby every that the member of the applied shown words Time, v. Inc. is much (7th 1958), Cir. F. And the burden 254 §111, at 749- very groups (Prosser, easier where small are involved. Torts business, all (4th 1971).) ed. there were but three co-owners of Here article, to all of repeatedly were attributed named and acts were owners,” three.” and “the them such terms as “the three “the owners” Thus, concerning is doubt the article there no that statements and Latimer distinguishable specifically plaintiff, owners referred to the that basis. on reportage” “neutral privilege
Defendants also claim the Society (2d v. National Audubon 1977), Edwards Cir. formulated Co. v. York Times nom. Edwards New cert. denied sub F. by the Fourth adopted U.S. L. 98 S. Ct. Ed. 2d Gazette, Inc. News Champaign District of this court Krauss *9 1362. In Edwards the Times New York 375 59 3d Society Audubon by members of the National printed charges made and not It at trial “paid specified liars.” was that certain scientists were held: figures. The court plaintiffs public were appeal contested on that “* # Na the organization like responsible, prominent “when a fig against public charges makes Society tional Audubon serious disinterested ure, accurate and protects First Amendment the the private reporter’s the charges, regardless of reporting of those 113, 120.) validity.” (556 F.2d regarding their views one, only upon be defeated as a limited to privilege The was formulated or charges in the or concurred proof publisher espoused that the attack of personal in order to make a deliberately reporting distorted the noted that proof no such and also his The court found plaintiff. own on the to maintain required which was also proof was no of actual malice there In Krauss of the director public figure was involved. the action because drug program designed who had and directed county youth home Relying program. alleging abuse claimed libel from an article there Edwards, reportage of neutral the doctrine on the court held by the trial court: of the action supported the dismissal privilege to a “Thus, gives bent reportage doctrine of neutral the information publish can items of press of which the the terms need not issues, programs which personalities, or relating public 745, 747, 375 N.E.2d (59 Ill. 3d literally accurate.” 1363.) believing that reasonably journalist on the privilege
This was conditioned and on the information asserted story accurately conveyed the itself was the assertion wherein being assertion made under circumstances that the showing upon defeated privilege could be newsworthy. anAs personal attack. distorted to launch story deliberately was article the the court found dismissal affirming alternative basis for rule. innocent-construction nonactionable under the in one before us the cause from distinguishable These cases are an issue figure or detail; public with a here crucial we are not concerned matter claim that public of concern. For defendants establish insufficient is newsworthy legitimate public and of concern health significant public an issue with privilege. This was not Edwards, of a performance nor did it concern ramifications as the case as was program, public employee public in a social service complaints concerning Krauss. At a small essentially private issue are enterprise. reportage I thus do not find the doctrine of neutral Furthermore, applicable. continuing validity of this doctrine is questionable light Supreme States Court decisions recent United which privilege restrict the first amendment invoked Edwards public Krauss figures public to cases where or officials are involved and which that it if concerns expressly hold is not sufficient the defamation private persons public general involved in concern. matters of (Wolston v. 61 L. Ed. 2d Digest (1979),_U.S_, Readers Association 450, 99 Time, L. 2701; S. Ct. U.S. Inc. v. Ed. Firestone 323, 41 Welch, S. Ct. U.S. Gertz v. Robert Inc. L. Ed. Ct. If persons 74 S. about which private comments public also involve matters interest are not to the more be accorded established, protection limited requirement that actual malice be protection reportage doubtful the broader Edwards neutral constitutionally doctrine is required. Nor have defendants contended that such protection law, should be afforded as a matter common independent of protections. constitutional dissent,
For the set judgment reasons forth in this I reverse would of the trial court and *10 plaintiff’s remand the cause with instructions that complaint be reinstated. al., et Greathouse,
GORDON & Plaintiffs d/b/a JONES Jones ATTEBERRY, Counterdefendants-Appellants, D. KEITH Defendant
Counterplaintiff-Appellee. Fourth District No. 15397 Opinion Rehearing filed October 1979. denied November