Owen v. Carr

• Decision Date: 17 September 1986
• Docket Number: No. 62159,62159
• Citation: 113 Ill.2d 273,497 N.E.2d 1145,100 Ill.Dec. 783
• Parties: , 100 Ill.Dec. 783 Robert D. OWEN, Appellant, v. Rex CARR et al., Appellees.
• Court: Illinois Supreme Court

Page 1145

497 N.E.2d 1145

113 Ill.2d 273, 100 Ill.Dec. 783

Robert D. OWEN, Appellant, v. Rex CARR et al., Appellees.

No. 62159.

Supreme Court of Illinois.

Sept. 17, 1986.

Heyl, Royster, Voelker & Allen, Springfield, for defendant-appellee; Adrian E. Harless, Gary M. Peplow and Michael C. Upperman, Jr., of counsel.

Robert D. Owen, Decatur, pro se.

Don H. Reuben, James H. Alesia, Donald A. Vogelsang, Reuben & Proctor, Chicago, for the Nat. Law Journal Defendants.

Justice WARD delivered the opinion of the court:

Robert D. Owen, an attorney, filed an action for libel in the circuit court of Macon County against Rex Carr, who also is an attorney, New York Law Publishing Company (New York Law), the publisher of the National Law Journal, James A. Finkelstein, the president of New York Law, David A. Ranii, a reporter for the National Law Journal, and SFN Companies, Inc., which acquired New York Law subsequent to the publication of the article which the plaintiff claims was libelous. The defendants, arguing inter alia that the language of the article was not libelous as a matter of law, moved to dismiss the complaint. The circuit court granted the motion, and the appellate court, with one justice dissenting, affirmed (134 Ill.App.3d 855, 88 Ill.Dec. 343, 478 N.E.2d 658). We granted the plaintiff's petition for leave to appeal under our Rule 315(a) (94 Ill.2d R. 315(a)).

The complaint alleged that Carr made defamatory statements about Owen to reporter Ranii, whose article containing the alleged statements was published in the November 1, 1982, issue of the National Law Journal. The article, with the caption "Judge Suing Lawyer Who Complained About Him," described a libel action filed by Carr against Owen on behalf of Judge William B. Starnes of the circuit court of St. Clair County. In that action the judge sought damages from Owen for "false and defamatory letters and memoranda" to the Illinois Judicial Inquiry Board accusing Judge Starnes of misconduct. Ranii, stating that the judge had been cleared of charges of misconduct by the Judicial Inquiry Board, compared the action brought against Owen with an earlier defamation suit filed by Carr in which he won a judgment against the Alton Telegraph and two of its reporters. Carr's theory in that suit, the article stated, was that the reporters furnished the United States Department of Justice unverified information incriminating the plaintiff contractor solely for the purpose of enabling the reporters to cover the resulting investigation. The inference to be drawn from the article, Owen says, is that he too had an improper purpose in corresponding with the Judicial Inquiry Board. Specifically, Owen focuses on statements in the article attributed to Carr:

"Judicial inquiries are privileged, but the defendants wrongfully abused that privilege and should be held liable, Mr. Carr claimed. Mr. Owen did not file his complaint in the interest of justice, but instead was trying deliberately to intimidate Judge Starnes and other judges in future cases involving [Owen's client] International Harvester, he said."

The complete article appears as an appendix to this opinion.

(The action brought by Carr in behalf of Judge Starnes was pending in the circuit court of Sangamon County at the time the article was published. The court denied Owen's motion to dismiss the complaint, but the appellate court, upon Owen's appeal under Rule 308(a), reversed, holding that communications with the Judicial Inquiry Board are absolutely privileged against claims of defamation. The appellate court held, though, that the circuit court correctly refused to dismiss a count which alleged that Owen made defamatory statements to persons unrelated to the Board. The cause has been remanded for trial on that count. Starnes v. International Harvester Co. (1986), 141 Ill.App.3d 652, 96 Ill.Dec. 26, 490 N.E.2d 1062.)

Owen claims that Carr's statements were libelous per se because they impugned his professional integrity and prejudiced him in the practice of law. The plaintiff does not claim any special damages, and consequently his right to recovery is based on the contention that the statements are actionable as a matter of law. See Fried v. Jacobson (1983), 99 Ill.2d 24, 26, 75 Ill.Dec. 398, 457 N.E.2d 392; Strauss v. Meyer (1868), 48 Ill. 385, 388.

Language to be considered defamatory per se must be so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217.) Under common law, language which falsely imputes a lack of integrity in the discharge of duties of office or employment, which prejudices the party in his profession, which imputes the commission of a criminal offense, or which imputes infection with a communicable disease of any kind which, if true, would tend to cause the person to be excluded from society is actionable for defamation without proof of special damages. (Fried v. Jacobson (1983), 99 Ill.2d 24, 27, 75 Ill.Dec. 398, 457 N.E.2d 392, citing Whitby v. Associates Discount Corp. (1965), 59 Ill.App.2d 337, 340, 207 N.E.2d 482.) (The legislature has also provided that false accusations of fornication, adultery and false swearing are actionable as a matter of law. (Ill.Rev.Stat.1983, ch. 126, pars. 1, 2.)) However, before statements will be judged defamatory as a matter of law, they must have been considered in light of what has come to be known as the innocent-construction rule. Fried v. Jacobson (1983), 99 Ill.2d 24, 27, 75 Ill.Dec. 398, 457 N.E.2d 392; Crinkley v. Dow Jones & Co. (1983), 119 Ill.App.3d 147, 150, 74 Ill.Dec. 636, 456 N.E.2d 138.

The innocent-construction rule has its origin in Illinois from obiter dictum in John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114. (Valentine v. North American Co. (1974), 60 Ill.2d 168, 172, 328 N.E.2d 265 (Ward, J., Underwood, C.J., and Schaefer, J., dissenting).) In John it was said:

"We further believe the language in defendant's articles is not libelous of plaintiff when the innocent construction rule is consulted. That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law." John v. Tribune Co. (1962), 24 Ill.2d 437, 442, 181 N.E.2d 105.

The rule has been the subject of strong criticism. This court observed in Chapski v. Copley Press (1982), 92 Ill.2d 344, 349, 65 Ill.Dec. 884, 442 N.E.2d 195:

"It [the rule] has been the subject of much critical commentary (see, e.g., Polelle, The Guilt of the 'Innocent Construction Rule' in Illinois Defamation Law, 1 N.I.U.L.Rev. 181 (1981)); (Symposium, Libel and Slander in Illinois, 43 Chi.Kent L.Rev. 1 (1966)); cf. Comment, The Illinois Doctrine of Innocent Construction: A Minority of One, 30 U.Chi.L.Rev. 524 (1963)); Stonecipher & Trager, The Impact of Gertz on the Law of Libel In Illinois, S.I.U.L.J. 73 (1979)), and considered to be a resurrection of the long-discarded 16th- and 17th-century English rule of mitior sensus (Eldredge, The Law of Defamation sec. 24, at 161 (1978))."

This court stated in Chapski that in the application of the rule there had been inconsistent and contradictory holdings, including a tendency of courts to "strain to find unnatural but possibly innocent meanings of words where such a construction is clearly unreasonable and a defamatory meaning is far more probable." (Chapski v. Copley Press (1982), 92 Ill.2d 344, 350-51, 65 Ill.Dec. 884, 442 N.E.2d 195.) The court concluded that a modification of what had been stated in John was warranted:

"We therefore hold that a written or oral statement is to be considered in context, with the words and the implications We judge that Carr's statements, considered as part of the whole article, may reasonably be said to permit an innocent interpretation. The article, in its own words, attempted to draw "some striking parallels" between the successful suit filed by Carr against the newspaper and two reporters and the action brought by Carr charging Owen with defaming Judge Starnes. The article may be said to suggest that the defendants in the respective proceedings had ulterior motives in instigating the investigations. The article, however, does not state that Owen, by corresponding with the Judicial Inquiry Board, actually intended to intimidate the judge. Rather the article presents Carr's statement only as an allegation to be proved at the trial of the complaint he filed against Owen. Significantly, the statement is preceded by Carr's concession that he did not know the precise information Owen presented to the Judicial Inquiry Board, and that it would be necessary to acquire evidence supporting the complaint before his client could prevail. The article concludes with the statement that the suit pends in the circuit court; the subsequent holding of the appellate court leaves a single count in the complaint with its subject matter, of course, unproved.

                [100 Ill.Dec. 786] therefrom given their natural and obvious meaning;  if, as so construed, the statement may reasonably be innocently interpreted or 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;  whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff."  92 Ill.2d 344, 352, 65 Ill.Dec. 884, 442 N.E.2d 195
                

We do not consider that the statements in the article are so "obviously and naturally harmful" to Owen as to constitute libel per se. (Zeinfeld v. Hayes...