Moore v. Streit

• Decision Date: 13 April 1989
• Docket Number: No. 2-88-0653,2-88-0653
• Citation: 130 Ill.Dec. 341,181 Ill.App.3d 587,537 N.E.2d 408
• Court: United States Appellate Court of Illinois
• Parties: , 130 Ill.Dec. 341, 17 Media L. Rep. 1144 William J. MOORE, et al., Plaintiffs-Appellees, v. Daniel STREIT, Defendant-Appellant.

Page 408

537 N.E.2d 408

181 Ill.App.3d 587, 130 Ill.Dec. 341,

17 Media L. Rep. 1144

William J. MOORE, et al., Plaintiffs-Appellees, v. Daniel STREIT, Defendant-Appellant.

No. 2-88-0653.

Appellate Court of Illinois Second District.

April 13, 1989.

Michael C. Poper, P.C., Michael C. Poper (argued), Stephen M. Haugh, Crystal Lake, for Daniel Streit.

Kell, Nuelle & Loizzo, Thomas F. Loizzo (argued), Kell, Nuelle & Loizzo, Woodstock, for Moore, et al.

Justice DUNN delivered the opinion of the court:

Plaintiffs, William Moore, chief of police for the Village of Cary, and six other Cary police officers, filed an action for slander against defendant, Daniel Streit, the owner of an automotive body shop in the village. The jury awarded no actual damages to plaintiffs, but awarded $6,500 in punitive damages to Moore and $1,500 in punitive damages to each of the other six plaintiffs. Defendant raises the following contentions on appeal: (1) that it was improper to award punitive damages to plaintiffs when there were no actual damages; (2) that the trial court erred by giving certain instructions which permitted the jury to presume malice if the alleged defamatory remarks were slanderous per se; (3) that since Moore was the only plaintiff specifically named in the alleged slanderous remarks, the other plaintiffs were not entitled to recover; (4) that a certain anonymous flyer critical of the Cary police force was erroneously admitted into evidence; and (5) that the trial court erred by denying defense motions for a mistrial as a result of certain misconduct by the attorneys for plaintiffs. We reverse and remand.

At trial, plaintiffs presented evidence concerning numerous allegedly slanderous statements made by defendant, including many which were not alleged in their amended complaint. In the following summary of the evidence presented at trial, we will focus primarily upon testimony relating to the slanderous remarks actually alleged in the amended complaint.

Gary Verdung testified that he had a conversation with defendant at the River Bend Restaurant in September 1981. Verdung's wife was present along with Jack Schaffer and his wife. At the time, Verdung was a member of the McHenry County board. Defendant stated that Chief Bill Moore was taking payoffs with regard to towing policies. Verdung testified that he did not believe defendant and did not believe the comment was very serious.

Bernard Borscha testified that he was the manager of Cary Autobody. Borscha had a conversation with defendant at the Cary Pub in March 1981. Greg Tricker was also present. Defendant stated that Borscha's boss and another man were paying off the chief, the cops in Cary, and the cops in McHenry County and that was why Cary Autobody was getting so many tow calls. Borscha told defendant he was crazy.

Dennis Keys, an officer with the Cary police department, testified that he had a conversation with defendant in April 1981 at Streit's Auto Body shop. Keys remembered that other people were present but did not remember who they were. Defendant stated that certain officers in the police department were on the take. After Keys asked him what he meant, defendant stated that Chief Moore and certain unnamed other officers were taking money from Grove Standard with regard to the towing of vehicles involved in accidents or arrests. Defendant also questioned Keys as to where Moore was getting the money to buy certain personal property.

In July 1981, Keys had a conversation with defendant at the River Bend Restaurant in an unincorporated area near Cary. Defendant bought Keys a beer, and they began to talk. Defendant again told Keys that Moore and other Cary police officers were taking money and said he was going to prove it. Keys told defendant that he did not know what he was talking about and excused himself.

Over defendant's objection, the trial court admitted into evidence two statements purportedly given by Frank Romano to a Cary police officer in February 1982. Romano testified that he signed the February 8, 1982, statement which did not mention any allegedly slanderous remarks made by defendant. Romano testified that he was not sure if the signature appearing on the statement dated February 5, 1982, was his. In the latter statement, Romano purportedly related certain comments made by defendant at Whitey Hersh's home in November 1981 in the presence of Romano and Hersh. According to the written statement, defendant said that he knew the Cary cops were on the take from Grove Standard and Neeley and he just had to prove it. He also said that in other towns, the police chief gets a percentage of the tows, and he knows Chief Moore is getting his share. Defendant admitted to the others, according to this statement, that he had no evidence of payoffs and stated he was trying to discredit Chief Moore so that the village would set the towing policy instead of the chief. This would enable defendant to sue the village.

In addition to stating that he was not sure if the signature on the February 5, 1982, statement was his, Romano testified that he did not even know the meaning of some of the words attributed to him in the statement. Romano was never asked about the accuracy of any of the answers attributed to him in the statement, including those mentioning defendant's allegedly slanderous statements of November 1981. The officer who took the statement, Lieutenant David Burman, did testify, but was asked no questions about the statement.

A statement signed by Michael Knutson was admitted into evidence. Knutson testified that he gave the statement to a Cary police officer on December 14, 1981. According to the statement, Knutson was standing in front of Streit's Auto Body on April 8, 1981, along with five other men. One of the men stated that Chief Moore was on the take. Knutson did not know who this man was at the time but found out later that it was defendant.

Knutson testified that he was chairman of the village police committee in 1981. He further testified that as of December 14, 1981, the date he gave the statement to the Cary officer, he had never met defendant. He now knew defendant very well and did not believe that defendant was the man who told him Chief Moore was on the take. Knutson stated that he originally thought that the man in question was defendant because after the man left the scene, Don Toomey, one of the other individuals who was present, stated that it was defendant.

Chief Moore testified that after defendant told him in May 1980 that some members of his department were taking payoffs with regard to towing, he ordered an internal investigation which turned up no evidence of wrongdoing. Moore stated that he had never taken a bribe. He also testified that in May 1983, an unknown individual left a sheet of paper on the desk of each village trustee which stated, "ATTENTION ANY COMMUNITY THAT TOLERATES A VENAL OR VICIOUS POLICE FORCE DESERVES TO BECOME ITS VICTIMS AND EVENTUALLY HAS MORE TO FEAR FROM ITS 'PROTECTORS' THAN ITS CRIMINAL PREDATORS." This document was admitted into evidence over plaintiffs' objection.

Defendant testified both as an adverse witness and on his own behalf. He denied making any of the statements attributed to him by plaintiffs' witnesses in which he allegedly accused Chief Moore and other Cary police officers of accepting payoffs.

After defendant rested, the trial court held an instructions conference. Defendant objected to each of the following three proposed instructions, which were given to the jury over his objection:

"Exemplary or punitive damages may be awarded where actual malice exists; however, the recovery of exemplary or punitive damages is not limited to cases of actual or express malice, but may be awarded on the basis of implied malice when the words published are actionable per se."

"Use of oral words imputing the commission of a crime is slanderous per se and damages need not be specifically pleaded and malice will be implied."

"When defamatory words are slanderous per se, the law will imply malice and such is presumed."

The jury found defendant liable, but awarded no actual damages. The jury did, however, award $6,500 in punitive damages to Chief Moore and $1,500 apiece in punitive damages to each of the other six plaintiffs. Defendant's post-trial motion was denied by the trial court. Defendant filed a timely notice of appeal.

The general rule in Illinois is that a party may not recover punitive damages in the absence of actual damages. (McGrew v. Heinold Commodities, Inc. (1986), 147 Ill.App.3d 104, 110, 100 Ill.Dec. 446, 451, 497 N.E.2d 424, 429; Rhodes v. Uniroyal, Inc. (1981), 101 Ill.App.3d 328, 330, 56 Ill.Dec. 834, 836, 427 N.E.2d 1380, 1382.) Defendant argues that the failure of the jury to award any actual damages precludes the awards of punitive damages. Plaintiffs respond by contending that in defamation actions, punitive damages may be awarded without any showing of actual damage if the statements giving rise to the cause of action are defamatory per se and were made with actual malice.

The above issue has been considered in two Illinois cases in which the courts reached opposite conclusions. In Tunnell v. Edwardsville Intelligencer, Inc. (1968), 99 Ill.App.2d 1, 241 N.E.2d 28, rev'd on other grounds (1969), 43 Ill.2d 239, 252 N.E.2d 538, the court upheld a jury verdict in a libel case in which plaintiff was given no award of actual damages but awarded $35,000 in punitive damages. The court cited the long-established rule that in cases involving statements which are defamatory per se, damage to reputation is presumed. (Tunnell, 99 Ill.App.2d at 9, 241 N.E.2d at 32.) The court went on to state as follows:

"To adopt the view that punitive damages in such defamation cases were dependent upon the allowance of actual damages, would be to allow a defamer some immunity because of the excellent reputation of the person defamed, and allow the defamer to...