Dauw v. Kennedy & Kennedy, Inc.

• Citation: 130 Ill.App.3d 163,474 N.E.2d 380,85 Ill.Dec. 652
• Decision Date: 24 December 1984
• Docket Number: No. 83-1779,83-1779
• Parties: , 85 Ill.Dec. 652, 11 Media L. Rep. 1504 Dr. Dean C. DAUW and Human Resource Developers, Inc., an Illinois corporation, Plaintiffs-Appellants, v. KENNEDY & KENNEDY, INC., and James H. Kennedy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 380

474 N.E.2d 380

130 Ill.App.3d 163, 85 Ill.Dec. 652,

11 Media L. Rep. 1504

Dr. Dean C. DAUW and Human Resource Developers, Inc., an Illinois corporation, Plaintiffs-Appellants, v. KENNEDY & KENNEDY, INC., and James H. Kennedy, Defendants-Appellees.

No. 83-1779.

Appellate Court of Illinois First District, First Division.

Dec. 24, 1984.

Rehearing Denied Feb. 21, 1985.

Schneider & Morrison, Ltd., Earl Schneider, Chicago, for plaintiffs-appellants.

Isham, Lincoln & Beale, Pamela Strobel, Chicago, for defendants-appellees.

CAMPBELL, Justice:

Summary judgment was entered in favor of defendants Kennedy & Kennedy, Inc., and James H. Kennedy and against plaintiffs Dr. Dean C. Dauw and Human Resource Developers, Inc., an Illinois corporation, on Count I of plaintiffs complaint, which alleged that defendants published a statement constituting libel per se.

This appeal followed.

It appears from the record that defendants are publishers of Consultant News, a monthly newsletter which is circulated to subscribers in the career counsulting and placement business in Illinois, the United States and Canada. In the August 1978 issue, the following article appeared:

"Executive recruiter pledges much--and keeps the fee"--headline in Chicago paper overruns story on Executive Careers alumnus Dean C. Dauw & his Human Resource Developers (also does some sex counseling) ... detailing how he charges only $795.00 vs. reported $2,500.00 at Richard/Allen/Winter and other placement/counseling shops.

(CN) Comment: More evidence of cross that true recruiters must bear when confused with schlock operations."

Plaintiffs brought suit alleging that the above article was libelous per se in that the use of the phrase "schlock operations" disparaged the plaintiffs in their professional capacities. The amended complaint alleged that the "Consultant News" is sold, and circulated generally throughout the United States and Canada, and that plaintiff, Dr. Dean C. Dauw, is a practicing psychologist, author, lecturer and associated professor in the graduate school of a local university. The plaintiff, Human Resource Developers, Inc. is an Illinois corporation, employing psychologists, including Dr. Dauw, and is engaged in the field of assisting individuals seeking executive career counseling or job counseling. Both parties filed motions for summary judgment. Defendants claimed that the Consultant News article reported information from an article published in the Chicago Sun-Times.

Plaintiffs were unable to properly plead a case in libel per se in Count I and the court granted summary judgment in favor of defendants and permitted plaintiffs to attempt to advance a theory of libel per se by the filing of an amended complaint adding a Count II to plead special damages. This court has been advised by appellees' brief that plaintiffs took a voluntary non-suit on Count II.

In the course of the hearing on plaintiffs motion to reconsider, the court observed that its independent research disclosed that "the word 'schlock' has never been defined in any English-speaking court anywhere." The court noted that there was a store in Fort Lauderdale, Florida, wherein such term was used in the name of the business and that the proprietor indicated in a telephone call that the term meant a "conglomeration of collected items of little use such as stored in an attic or sold at a cheap price." The name of the store is protected and registered.

The court also consulted various dictionaries including a Yiddish dictionary by Leo Rosten and some of them had derogatory meanings attached to the word. The court also considered the cases in the jurisdictions of New York, California, Illinois and Florida and in none of those jurisdictions had the word "schlock" ever been the subject of a libel action. The court felt that the word "schlock" can be construed as having such various meanings as inferior, bargain, fire sale or distressed merchandise. Thereafter, the court denied the motion to reconsider the granting of summary judgment in favor of defendants as to Count I.

Plaintiffs do not aver any special damages and, thus, their right to recover rests upon whether the alleged libelous matters are actionable as a matter of law. Fried v. Jacobson (1983) 99 Ill.2d 24, 75 Ill.Dec. 398, 457 N.E.2d 392. In Fried, the Supreme Court declared that "under common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. They are:

"1. Those imputing the commission of a criminal offense;

2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;

3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;

4. Those prejudicing a particular party in his profession or trade." 99 Ill.2d at 27, 75 Ill.Dec. 398, 457 N.E.2d 392.

In Chapski v. Copely Press, et al (1982) 92 Ill.2d 344, 352 , 442 N.E.2d 195 the Supreme Court stated as follows: "We therefore hold that a written or oral statement is to be considered in context, with the words and implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance."

On appeal plaintiffs assert that the trial court erred in innocently construing the phrase "schlock operations". Plaintiffs contend that such construction under Chapski is neither natural or obvious and is...