Proesel v. Myers Pub. Co., Gen. No. 47614

• Citation: 24 Ill.App.2d 501,165 N.E.2d 352
• Decision Date: 29 February 1960
• Docket Number: Gen. No. 47614
• Parties: Henry PROESEL, Appellant, v. MYERS PUBLISHING COMPANY, a corporation, and Edward F. Ream, Jr., Appellees.
• Court: United States Appellate Court of Illinois

Page 352

165 N.E.2d 352

24 Ill.App.2d 501

Henry PROESEL, Appellant, v. MYERS PUBLISHING COMPANY, a corporation, and Edward F. Ream Jr., Appellees.

Gen. No. 47614.

Appellate Court of Illinois, First District, First Division.

Feb. 29, 1960.

Rehearing Denied March 28, 1960.

James A. Dooley, Chicago, for appellant.

Kurt J. Salomon, Chicago, for Myers Pub. Co., appellee.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Otto J. Rouse, Chicago, Howard Ellis, Don H. Reuben, James E. Beaver, Chicago, of counsel, for Edward F. Ream, Jr., appellee.

McCORMICK, Justice.

This is an appeal from an order of the Superior Court of Cook County entered July 16, 1958 sustaining defendants' motions to strike and dismiss plaintiff's second amended complaint.

In the second amended complaint the plaintiff alleges that he for many years has been and is now president of the Village of Lincolnwood, Illinois, and president of the Bank of Lincolnwood, in the Village of Lincolnwood; that he has had the good opinion and esteem of the residents of said community and has established among the people of the community an excellent reputation for business skill and ability, for honesty, integrity and good character; and that defendant Myers Publishing Co. (hereafter referred to as 'Myers') is the owner, printer and publisher of 'The Life of Niles Township,' a newspaper circulating generally in Lincolnwood, Skokie, and other suburbs north of the City of Chicago, and in the City of Chicago, Illinois.

Plaintiff further alleges:

'3. That on August 23, 1956, the defendant, Myers Publishing Co., a corporation, did print, publish, circulate and distribute copies of the newspaper, 'The Life of Niles Township,' containing on page 1 thereof an article with a large four-column headline entitled 'Ream Cites Need for Audit in Lincolnwood;' a sub-caption 'Says Proesel Using Flood as Cover-up' in smaller but boldface type; and another sub-caption 'Tells What Happened to $100,000 of Water Bond Money.' That said article was continued on page 2 of Section 2 of said newspaper. That said article, in addition to the headlines and sub-headlines quoted above contained, among others, the following statements:

"Ream was one of the Lincolnwood leaders who objected to the method proposed to finance combined sewer and waterworks construction, and in two referendums defeated the Proesel administration plan.'

"The poor judgment exhibited by Proesel and some of his cohorts, and their inept manner of handling some recent personnel and zoning problems have opened the eyes of many of the villagers and brought storms of criticism on the administration.'

"The sewer project was never offered separately, although part of the Morse Avenue sewer was constructed apparently by diverting funds raised by selling more bonds than were necessary for waterworks construction.' (Italics supplied.)

"Nearly $100,000.00 in bonds to be paid for by high water rates, were sold over and above the cost of the waterworks set up by the ordinance.' (Italics contained in newspaper article.)

"Approximately $50,000.00 of this money was used to enlarge or replace the water main in Crawford Avenue, to cover up an error in original selection of the pumping station site.' (Italics contained in newspaper article.)

"The remainder of the money apparently went into the $90,000 Morse Avenue sewer back of the new Ditto plant. Ditto, and perhaps others, also paid for part of this sewer, since for their convenience, other sewers were closed off. The real story will probably never be known until we get an independent audit of the Village finances.' (Italics contained in newspaper article.)

"Proesel has since stymied further construction on Morse Avenue, though home-owner groups have petitioned him to take action. One ordinance for its construction presented in the 'back room' to the Board of Trustees nearly one year ago was mysteriously withdrawn.'

"Today apparently only Proesel knows whether Lincolnwood will ever get the Morse Avenue interceptor."

and again,

"The trustees followed cues with Proesel reading years-old newspaper clippings and letters directly to the audience.'

"Henry Proesel, President of the Board * * *.'

"Proesel Heads the administration * * *."

The plaintiff states in his complaint that the article was a statement which had been submitted to the newspaper by the defendant Edward F. Ream, Jr. (hereafter referred to as 'Ream') for the purpose of publication. The plaintiff further alleges:

'6. That on August 30, 1956, the defendant corporation published in its newspaper 'The Life of Niles Township' an article entitled 'For Newcomers to Lincolnwood' in large headlines across three columns, 'Ream Explains Why Voters Said 'No' to Sewer Plan.' That said article consisted almost entirely of a 'statement' submitted to the defendant, Myers Publishing Co., by the defendant, Edward F. Ream, Jr. That among other things, said article contained the following statements:

"Ditto offered the Village $35,000 to reroute this Kimball Avenue sewer eastward on Morse direct to McCormick Boulevard and the canal, thus taking it off their property. * * *'

"Existence of the $35,000 kitty from Ditto was denied at the time by the Administration and no allowance was made for it in figuring the proposed bond issue.'

"In September, 1953, Proesel decided to try the bond issue again on the identical basis on which it had just been defeated.'

"Proesel apparently had decided that if the Villagers didn't want the sewer on his terms, they wouldn't get it at all.'

"By quietly diverting money from the waterworks program and by finally having to use the $35,000 Ditto fund, the Kimball Avenue sewer was rerouted by constructing a portion of the Proposed Morse Avenue interceptor from Kimball Avenue east to the canal.'

"On or about September, 1955, Proesel proposed an ordinance to the Board of Trustees * * * this proposal was of the 'back room' variety and was not made publicly.' (Italics from newspaper.)

"Construction might have started months ago if the Proesel administration had not chosen to withhold the ordinance."

Copies of both articles were attached to the complaint as exhibits and made a part of the complaint.

In his complaint the plaintiff further alleges that the articles were false.

Defendant Myers filed a motion to dismiss alleging, among other things, that the articles are not libelous per se; that there are no facts alleged which say that the statements concerning the plaintiff were maliciously made; that the publications complained of are not actionable since they dealt with the report of defendant Ream, one of the trustees of the Village of Lincolnwood, about conditions and matters with reference to the sewerage and water systems in the village, and that hence the articles were fair comment and criticism. Defendant Ream filed a motion to strike in which he set up, among other things, that the language in question is not libelous per se; that it is comment on matters of public interest; and that it affirmatively appears from the face of the complaint that the defendant Ream is not the author of any of the headlines.

The plaintiff did not plead special damages nor any facts showing financial injury. No innuendo was pleaded, and the plaintiff has elected to stand upon his interpretation of the articles as being libelous upon their face since they charge plaintiff with diverting public funds from the purpose for which they were appropriated, which he alleges is a crime, and for having attacked plaintiff as a public official charging him with dishonesty, corruption in office and want of integrity.

The question before us is as to whether the trial court erred in finding as a matter of law that the plaintiff's second amended complaint failed to state a cause of action based upon its finding that the articles were not libelous per se.

In Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587, 590, the court says:

'Section 177 of our Criminal Code * * * defines libel as a malicious defamation, expressed by printing or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury. Under such a statute it is not necessary to charge one with a crime to make the charge libelous per se. Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N.E. 692, 13 L.R.A. 864; Dowie v. Priddle, 216 Ill. 553, 75 N.E. 243; People v. Fuller, 238 Ill. 116, 87 N.E. 336.'

In considering the articles they must be construed by the court in the sense which readers of common and reasonable understanding would ascribe to them (Parmelee v. Hearst Pub. Co., Inc., 341 Ill.App. 339, 93 N.E.2d 512); or, as was stated in LaGrange Press v. Citizen Pub. Co., 252 Ill.App. 482:

'In determining this [if the published article is libelous per se], the words must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptation. 'All the words in the article are to be considered, and when they are all considered together, the question is, how would they be understood by men of common and reasonable understanding?' People v. Fuller, 238 Ill. 116 ; Nelson v. Borchenius, 52 Ill. 236; Barnes v. Hamon, 71 Ill. 609; Ransom v. McCurley, 140 Ill. 626 .'

When 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, and if the court concludes that the statement can in no sense be libelous then he should dismiss the complaint. On the other hand, if the article is capable of two meanings, one libelous and the other not, then the meaning of the article must be submitted to a jury. Spanel v. Pegler, 7 Cir., 160 F.2d 619, 171 A.L.R. 699; Beauharnais v. Pittsburgh...