Flannery v. Allyn

• Decision Date: 26 March 1964
• Docket Number: Gen. No. 49147
• Citation: 47 Ill.App.2d 308,198 N.E.2d 563
• Parties: Robert J. FLANNERY and William Moore, Plaintiffs-Appellees, v. Arthur C. ALLYN, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 563

198 N.E.2d 563

47 Ill.App.2d 308

Robert J. FLANNERY and William Moore, Plaintiffs-Appellees, v. Arthur C. ALLYN, Jr., Defendant-Appellant.

Gen. No. 49147.

Appellate Court of Illinois, First District, Third Division.

March 26, 1964.

John J. Garrity, Chicago, for appellant.

John J. Burns, Jr., Chicago, for appellees.

SULLIVAN, Justice.

This is an appeal from judgments entered on verdicts in favor of each of the plaintiffs in a libel action, after the court had instructed the jury as to defendant's liability. The plaintiffs were police officers of the Chicago Park District at the time of the occurrence complained of.

On July 21, 1958 the defendant wrote and sent the following letter to Chief George Otlewis of the Chicago Park District:

'Chief George Otlewis

'Police Division

'Chicago Park District

'Administration Building

'425 East 14th Boulevard

'Chicago 5, Illinois

'Prior to noon on March 23rd on the Outer Drive, the officers driving Police Car #920, license #M7716, solicited a check from my daughter, a copy of which is enclosed, when the car in which she was riding was stopped, for 'speeding.' When she asked the officers to whom the check should be made, they said, 'cash what else.' The check was pre-dated March 22nd because the 23rd was a Sunday. Further, this solicitation was done in front of witnesses.

'I regret having to advise you of this situation at such a late date, but you will note that the check was not put through the bank until the 31st, and since my daughter is away at school, and we just recently returned from a trip to Hawaii, there was no opportunity to present this matter until now. I expect discriplinary action to be taken promptly.

'The newspapers have not been advised, and I have no intentions at the present time of doing so.

'A. C. Allyn, Jr. (signed)

'A. C. Allyn Jr.

'djd'

The complaint alleged that the defendant wrote the letter maliciously, intending to destroy the good names of the plaintiffs and charge them with being dishonest and crooked. That as a result of the letter they were shunned and injured in their reputation. $The facts occurring prior to the sending of the foregoing letter are briefly these:

In July, 1958, the defendant saw a cancelled check signed by his daughter for $15.00 payable to cash and bearing the deposit stamp of a tavern but no other endorsement. He was at that time checking his daughter's bank statement. He asked his daughter about the check and she told him that she was riding in a car on Lake Shore Drive, which was stopped for speeding, and that she gave the police officers a check for $15.00.

At the trial these facts were brought out:

The driver's name was Paul Power. With him were two young ladies, one of them being Dorothy Allyn. The driver was charged with exceeding the speed limit and was given a ticket. He was informed a $25.00 bond was required. The driver did not have his driver's license with him. The driver had only $10.00. Miss Allyn asked if they would take a check for $15.00. Officer Flannery told her to make out the check to cash and he would give her $15.00 cash to avoid inconvenience. She gave the money to the driver who was arrested for speeding, and he, in turn, gave $25.00 to the sergeant at the police station.

When this letter was received by Chief Otlewis it was read by him and went down the chain of command for investigation. Many police officers in the police station who were not assigned to investigate the matter read the letter. There is no question that there was publication of this letter and the persons who read the letter knew that it referred to the plaintiffs.

The defendant, when he sent the letter of July 21, 1958, knew only that his daughter had given a police officer a check for $15.00, and he assumed the worst.

Subsequently, on August 28, 1958, after the defendant had discovered the facts concerning the incident he wrote the following letter to Chief George Otlewis of the Chicago Park District:

'Chief George A. Otlewis

'Chicago Park District

'Administration Building

'425 East 14th Blvd.

'Chicago 5, Illinois

'Please refer to my letters to you dated July 21st and July 28th of this year.

'I have now had an opportunity to discuss the matters contained in those letters in detail with the driver of the vehicle. It is now clear that the apparent infraction of the rules by your officers arose from a failure on the part of the driver of the vehicle, and also on the part of the officers not to disclose to my daughter the nature of the solicitation of her check. The officers involved did generously offer to the driver of the vehicle to cash a check to permit the driver to put up the necessary bond. The bond was put up and a receipt was given therefore.

'I do not think that it was wise for the officers to cash a personal check, but I must say that it was quite generous of them to do so. Thank you for your cooperation in this regard.

'(s) A. C. ALLYN, JR.

'A. C. ALLYN, JR.

'djd

'cc: Captain John Northen'

The plaintiffs contend that the communication of July 21, 1958 was libelous per se.

In 33 I.L.P. Slander and Libel § 26, it is said:

'Any language which imputes want of integrity, a lack of due qualification, or a derelection of duty to an officer or employee, whether it is written or spoken, is actionable per se.'

In the case of Clifford v. Cochrane, 10 Ill.App. 570, on page 574, the court said:

'The general rule in relation to the speaking of words of one in a particular calling may be stated as follows: any words spoken of such a person in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud, or indirect dealings, or with incapacity, and that tend to injure him in his trade, profession, or business, are actionable, without proof of special damage. (Citing cases.)'

The case of Zurawski v. Dziennik Zjednoczenia Pub. Corp., 286 Ill.App. 106, 2 N.E.2d 956, held that to falsely charge one with the commission of a crime is libelous per se.

In Holtz v. Alton Telegraph Printing Co., 324 Ill.App. 1, 57 N.E.2d 137, a newspaper article charged that by manipulation the canvassing board of Madison County had managed to put one candidate into office even though another candidate had received more votes. At page 6 of 324 Ill.App., at page 139 of 57 N.E.2d the court said:

'Defamatory words * * * which impute * * * unfitness to perform the duties of an * * * employment of profit, or the want of integrity in the discharge of the duties, * * * are actionable in themselves.'

That case also held that in determining whether a published article is libelous per se, the words must be taken in the same sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptance.

In the case of Cowper v. Vannier, 20 Ill.App.2d 499, on page 501, 156 N.E.2d 761, on page 762, the court said:

'The rule is, that written or printed words are libelous per se, if clearly defamatory on their face and are unambiguous and incapable of an innocent meaning. Dowie v. Priddle, 216 Ill. 553, 75 N.E. 243; White v. Bourquin, 204 Ill.App. 83; Dilling v. Illinois Pub. & Printing Co., 340 Ill.App. 303, 91 N.E.2d 635. If the words are libelous per se, it is not necessary to allege or prove special damages, as both malice and damages are presumed. White v. Bourquin, supra. Where the words are ambiguous or equivocal in meaning, the question of the meaning to be ascribed to them is for the jury. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587.'

The law is that where the language is unambiguous and capable of only one meaning, it presents a question of law to be determined by the court as to whether or not it is libelous per se.

In the instant case, the letter could be interpreted in only one reasonable way. The defendant was accusing the officers of soliciting a bribe, which is not only an imputation of want of integrity in the performance of their duties, but an imputation of the commission of a crime.

The crime of bribery as set forth in the Illinois Statute existing at the time of the occurrence herein reads in part as follows:

'Whoever corruptly, directly or indirectly, gives any money or other bribe, present, reward, promise, contract, obligation or security for the payment of any money, * * * to any judge, * * * or other officer, ministerial or judicial, * * * to perform any duty of him required, with partiality or favor, or otherwise than is required by law, * * * the person so giving, and the officer so receiving any money, bribe, present, reward, * * * shall be deemed guilty of bribery, * * *.' Ill.Rev.Stat.1957, chap. 38, sec. 78.

Under the prevailing case law the letter is therefore, standing alone, libelous per se, and unless it is subject to an absolute or qualified privilege, malice is inferred.

The defendant claims that the letter is only actionable per quod because an innuendo is necessary to show that the letter was defamatory. Since there can only be one interpretation of the meaning of the letter we do not believe that this position is tenable. Since we conclude that the letter, standing alone, is libelous per se, we come to the question of whether or not it is subject to any privilege.

In Cook v. East Shore Newspapers, Inc., 327 Ill.App. 559 at page 577, 64 N.E.2d 751, at page 759, the court said:

'An absolutely privileged communication is one in respect of which by reason of the occasion on which or the matter in reference to which it is made no remedy can be had in a civil action. This class is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including communications made in the discharge of a duty under express authority of law, or to heads of the executive departments of the State, and matters involving military affairs. A publication which is conditionally or qualifiedly privileged is one made in good faith on any subject matter in...