Ogren v. Rockford Star Printing Co.

• Decision Date: 18 June 1919
• Docket Number: No. 11944.,11944.
• Citation: 123 N.E. 587,288 Ill. 405
• Parties: OGREN v. ROCKFORD STAR PRINTING CO.
• Court: Illinois Supreme Court

288 Ill. 405

123 N.E. 587

OGREN

v.ROCKFORD STAR PRINTING CO.

No. 11944.

Supreme Court of Illinois.

June 18, 1919.

Error to Circuit Court; Winnebago County; Claire C. Edwards, Judge.

Action by Oscar H. Ogren against the Rockford Star Printing Company. There was a judgment for defendant, and plaintiff brings error. Reversed and remanded.

Roy F. Hall, of Rockford, for plaintiff in error.

Fisher, North, Welsh & Linscott, of Rockford (R. K. Welsh, of Rockford, of counsel), for defendant in error.

DUNCAN, J.

Oscar H. Ogren, plaintiff in error (hereinafter known as plaintiff), began suit in the circuit court of Winnebago county against the Rockford Star Printing Company to recover damages for the publication of three alleged libels. The jury returned a verdict of not guilty, and judgment was entered against plaintiff. This writ of error is sued out of this court and jurisdiction invoked on the ground that a constitutional question is involved.

The plaintiff had lived in Rockford for many years, was married, and had one daughter about ten years old. His father's family also lived in Rockford. Plaintiff had worked at different occupations, served two terms in the city council, and had been at a previous election a candidate for mayor of Rockford, and was at the time of the publications alleged to have been libelous a candidate for mayor on the Socialist ticket. In the election in question he had as his only opponent W. W. Bennett. The alleged libelous articles were published by the defendant in the manner of advertisements during this campaign, one at a time on three different days, April 15, 16, and 17, 1915, in its newspaper, the Rockford Morning Star. Each article was made the subject of a count in the plaintiff's declaration. So far as they are made a part of the declaration and appear in the abstract they are here copied verbatim in the order in which they were published, and are numbered, respectively, 1, 2 and 3, to wit:

1. ‘The real issue is Socialism. Rockford faces a calamity. Without evasion or digression, the real, impending and fearful cloud hanging over Rockford to-day is, The Menace of the Red Flag. Do you want to turn Rockford over to that emblem? * * * This is a typical expression of Socialistic thought. Do not be deceived by sugar-coated and misleading speeches being made on the stump now by Mr. Ogren to get votes. Stop and Think. Find out what Socialism really is. Meet the issue without passion or prejudice. Before you decide how you will vote next Tuesday, inform yourself. A vote for Oscar Ogren will be a straight vote for Socialism.’

2. ‘ Twenty-five new industries have been established in Rockford during the past four years. Will one industry locate here if we elect a mayor who, upon taking his seat in the council, made this statement? Statement by alderman Oscar Ogren on taking his seat in council May 3, 1909: ‘I have been elected by the Socialist party of my ward. All my votes and my actions while in this council will be in direct opposition to all corporations, regardless of what the question or the issue is. That is why I am here-that is my mission in the council.’ * * * Honest workingmen want work. Gab, dynamite, and blowing tenement houses to hell do not produce work. Socialism would destroy the American home. A vote for Ogren is a vote for Socialism.'

3. ‘ Socialism means terror, unrest, and financial ruin. None of these citizens want the red flag: The workingman-who values a steady job. The home owner-who wants it protected. The man with a savings account-who wants it to grow. The young man-who is looking to the future. The minister-whose calling should be honored. The doctor-who is serving humanity. The merchant-who deserves a sequare deal. The lawyer-who stands for human rights. The plain, substantial citizen-who puts patriotism and civic pride before class prejudice and sectional hatred.

‘No woman can be true to herself and her home and vote for Socialism. No mother-who has a son or daughter. No first voter-who regards the ballot justly. No housewife-who loves her home and family. No club woman-who knows the needs of womanhood. No woman wage-earner-who knows the evils of business unrest. No professional woman-who knows the danger of epidemics. No church member-who appreciates the sanctity of her church. No school teacher-who wants sanity to prevail. No student-who understands American tradition. Not one of these woman would be spared were the wild dreams of Socialists given official sanction. A note for Ogren is a vote for Socialism. Vote for Bennett and preserve the peace and good will of Rockford.

‘Rockford's Socialism is the rankest of all. Not one of the writers in all the Socialist propaganda could be more violent than this one. A vote for Ogren is a vote for this platform. * * * Do you want Rockford to become the testing ground for every wild scheme which might be presented by men who urge the use of dynamite and blowing tenements to hell? Rockford is in danger. It needs every vote. A vote for Ogren is a vote for Socialism.’

The three articles all contained the following words and sentences at the respective places in the articles as above copied where the stars or asterisks occur and are to be considered as inserted in each article at the places thus indicated, to-wit:

‘Read what Oscar Ogren, now candidate for mayor, said at a public meeting at the Majestic Theater February 12, 1915: ‘We don't want work. What we want is a division of those profits that have already been made. I am a rebel. There are men out there in this audience that are just as big rebels as I am, but they haven't the gift of gab that I make it, and really want work I know where to make it, and I am in favor of going into Chicago and taking dynamite and blowing those tenement houses to hell!’'

The words just quoted were printed near the center of the newspaper article first printed, with a heavy border around it, with a hand pointing towards it from either side. In the second article both speeches of Ogren, in the council and in the theater, were printed near the center of the article, side by side, with a light border around each. In the third article the words of Ogren alleged to have been spoken at the theater are near the center of the article or page, with a light border around it and with a hand on the left pointing to it and these words printed under the hand and immediately at the left of the left-hand border: ‘A vote for Ogren is a vote for this platform.’

There was a fourth count to the declaration which combined the charges in all three of the other counts, or, rather, made the three publications as the basis of that count. It is a good cause of demurrer in actions at law under the common-law system of pleading that two or more causes of action are joined in one and the same count of the declaration. When they are so joined, the count is double, and for that reason demurrable. Declarations for libel follow the same rule. Two or more causes for separate libels or slanders may be united in one declaration but should not be blended in one and the same count. 13 Ency. of Pl. & Pr. 60. The publications are all distinct publications, and the latter two are not continuations of an incompleted publication or charge.

The defendant filed the general issue and three special pleas, one to each of the other three counts of the declaration.The substance of the first special plea is that the plaintiff was a candidate for mayor of Rockford on the Socialist ticket, and that there were other Socialist candidates for other offices of the city on said ticket; that there then existed in said city a political and propagandist organization known as the Socialist party, which was devoting itself to the alleged principles, doctrines, and proposals of Socialism; that plaintiff, as such candidate, represented that party and all its alleged principles, doctrines, and proposals; that, as publisher of its daily newspaper, it was defendant's privilege and duty to publish for the information of its patrons and the city of Rockford the alleged principles and doctrines and proposals of any political party nominating candidates for said offices and report and attitude and beliefs of any such candidates upon governmental, municipal, civic, and social questions; that, in accordance with its right and duty, defendant did on said date publish in its newspaper of and concerning Socialism, but not of and concerning the plaintiff, certain matters, the certain matters being all of said article except the alleged words spoken by plaintiff at the theater and the last sentence of said article and one other sentence. In the same plea the defendant justified by averring that Ogren did in a public speech utter the words alleged to have been spoken at the theater, and also by averring that it was true that plaintiff was then making sugar-coated and misleading speeches to get votes, as charged in said article. The last sentence of said article was not covered by any averments in the plea. A similar plea was filed as to the second and third counts, wherein the defendant likewise averred that it published certain parts of the second and third articles of and concerning Socialism and justified as to certain other parts in the same plea, and failed to plead at all as to other sentences in the article.

Plaintiff by leave replied doubly to the special pleas, after joining issue on the plea of the general issue. By his second replication plaintiff denied the allegations in all the special pleas. His third replication was to the effect that, even though the defendant published certain matters of and concerning Socialism only, yet persons who read the articles understood such parts to have been published of and concerning the plaintiff. It is sufficient to say that plaintiff shows no ground for complaint at the court's sustaining a demurrer to his third or special replication. If any such matters are proper at all, they were admissible...