Tunnell v. Edwardsville Intelligencer, Inc.

• Decision Date: 14 August 1968
• Docket Number: Gen. No. 67--46
• Citation: 99 Ill.App.2d 1,241 N.E.2d 28
• Parties: Robert W. TUNNELL, Plaintiff-Appellant, v. EDWARDSVILLE INTELLIGENCER, INC., a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 28

241 N.E.2d 28

99 Ill.App.2d 1

Robert W. TUNNELL, Plaintiff-Appellant, v. EDWARDSVILLE INTELLIGENCER, INC., a Corporation, Defendant-Appellee.

Gen. No. 67--46.

Appellate Court of Illinois, Fifth District.

Aug. 14, 1968.

Dick H. Mudge, Jr., Edwardsville, for appellant.

Gordon Burroughs, Burroughs, Simpson, & Burroughs, Edwardsville, Emerson Baetz, Alton, for appellee.

EBERSPACHER, Presiding Justice.

This is a defamation suit wherein the plaintiff, Robert W. Tunnell, a licensed attorney and city attorney of Edwardsville, Illinois, brought suit against the defendant, Edwardsville Intelligencer, Inc., a daily newspaper, for publishing and circulating an allegedly libelous article on February 23, 1961.

The cause was tried before a jury and on May 11, 1966 the jury returned the following verdict: 'We, the jury, find in favor of the plaintiff and against the defendant, and assess plaintiff's compensatory damages in the sum of One dollars, and the punitive damages in the sum of $35,000.00 dollars.'

The court failed to enter judgment on the verdict but thereafter on June 29, 1966, ruled on defendant's motion for a directed verdict which had been made at the close of all the evidence and filed a written opinion which concluded with the following order:

'That the verdict of the jury is contrary to law, and that there is no basis for libel under the facts and the law.

'That the verdict of the jury is in favor of the defendant.

'Judgment is hereby entered in favor of the defendant and against the plaintiff. * * *'

Plaintiff filed his post trial motion which was denied; and the plaintiff then appealed. After the plaintiff had filed his brief and the defendant its answer, a motion was filed in this Court suggesting the death of the plaintiff and moving to substitute Lena S. Tunnell, Executor of the Estate of Robert W. Tunnell, deceased, as the plaintiff. The plaintiff's motion was accompanied with a further motion withdrawing the plaintiff's portion of the appeal that sought a new trial. The defendant filed objection to the motion to substitute and a motion to dismiss alleging that the action had abated upon the death of the plaintiff. There has been no ruling upon the motions and by an order entered by this Court, the motions were taken with the case.

We decide the question of abatement first because if the action abates due to the death of the plaintiff, it would be needless to pass upon the merits of the case.

At common law, and now by statute, a suit in the nature of defamation abated upon the death of either the plaintiff or defendant and was subject to dismissal with prejudice upon such death without the possibility of revivor in the name of a personal representative. Chap. 3, § 339, Ill.Rev.Stat. (1965); Chiagouris v. Jovan, 43 Ill.App.2d 220, 193 N.E.2d 205 (1963).

However, a second question is presented when the cause is pending appeal for in that event, the cause of action has gone to judgment and a different situation exists. In such a case the cause of action ceases to exist, being merged in the judgment, and consequently so long as the judgment remains in force, the doctrine of abatement has no further application, unless the case is one in which the death wholly eliminates the matter in controversy. Weding v. Kroger Grocery & Baking Co., 278 Ill.App.2d 378.

In the present case the plaintiff obtained a verdict. However, judgment was never entered upon this verdict. We note that Section 68(2) of the Practice Act requires the Court to promptly enter judgment on the verdict upon its return by the jury. Chap. 110, § 68, Ill.Rev.Stat.1965. When viewed in this light, the effect of the court's subsequent order was to set aside the judgment which should have been entered on the return of the jury's verdict.

The purpose of this appeal is to substantiate by a reversal in this Court, the validity of the judgment, and thus obtain the benefit of the judgment which should have been rendered on the verdict. This, of course, will be the result if the appeal is successful. It is not as if a judgment had never been obtained, in which case, the cause of action would have abated. By the trial court's action, and this appeal, the judgment is simply held in abeyance and may or may not become effective to the plaintiff, that issue depending entirely upon the determination of the other question in this Court as to whether the court erred in setting aside the judgment. It is our opinion that the effect of the appeal is to suspend the operation of the order setting aside the judgment and to keep alive the judgment until the appeal is determined. It is not a question of whether the cause of action survives, for the cause of action has merged in the judgment and the validity of the judgment is the question at issue.

The question appears to be one of first impression in the State of Illinois as neither of the parties, nor from our own research have we, found any Illinois cases bearing directly upon this issue. However, our opinion is supported by opinions in other jurisdictions which have passed upon the issue. Crawford v. Chicago, Rock Island & Pacific Railway Company, 171 Mo. 68, 66 S.W. 350 (1902); Wright, et al. v. Northern Pacific Railway Company, 45 Wash. 432, 88 Pac. 832 (1907).

Under the circumstances of this case it is our opinion that the cause of action had merged into the judgment, that the motion to substitute the plaintiff's executor as the party plaintiff and the motion withdrawing the request for a new trial should be granted, and the defendant's motion to dismiss denied.

The article complained of ¹ concluded with the following sentence, on which plaintiff based his complaint:

'Rumors on the main stem today had it that Atty. Tunnell was working to break the law, whether it was the city or state law was not explained.'

If the verdict returned by the jury, which made no award for compensatory damages, precludes recovery by the plaintiff, we need not determine whether a case of actionable libel was presented; as a result we consider first defendant's second contention, i.e. that the verdict finding no actual damages but awarding punitive damages, requires a judgment for the defendant.

On this point defendant relies on the general rule that punitive damages must depend on a concurrent award of actual damages, citing numerous Illinois cases and including Geach v. Olsen (1955 C.C.A. 7th Cir.) 211 F.2d 682, where it is stated that Illinois courts follow the rule that punitive damages cannot be allowed without proof of actual damage ². None of those cases cited are libel cases; although Reeda v. Tribune Co., 218 Ill.App. 45, concerns a suit against a publisher, in which the court was specifically advised that the declaration did not proceed on the theory of libel nor on 'false words causing damage', and the court found no cause of action stated.

The rule which plaintiff contends is applicable in this case is stated in 33 Am.Jur., Libel and Slander, Sec. 202;

'* * * where the defamation complained of is actionable per se, it is generally held that punitive damages may be awarded even though the amount of actual damages is neither found nor shown.'

That rule has been reiterated in numerous Illinois defamation cases; see Lorillard v. Field Enterprises, 65 Ill.App.2d 65 p. 78, 213 N.E.2d 1, p. 7; Wade v. Sterling Gazette Co., 56 Ill.App.2d 101, p. 106, 205 N.E.2d 44, p. 47; Cowper v. Vannier, 20 Ill.App.2d 499, p. 501, 156 N.E.2d 761, p. 762. In Lorillard (supra) and the other cases cited therein, the Court reiterated the long established rule that in cases of defamatory falsehood, that is, a statement which is libelous per se, both malice and damage to reputation are presumed. However, since the case of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 and Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 87 S.Ct. 1975, 11 L.Ed.2d 1094, malice is no longer presumed if the plaintiff is a public official or a 'public figure' nor can malice be presumed if the article complained of is a report of governmental acts or utterances. Lulay v. Peoria Journal Star, Inc., (1966) 34 Ill.2d 112, 214 N.E.2d 746. However an examination of those cases discloses that the rule with reference to the presumption of damage to reputation in such case is not changed.

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 become the beneficiary of the unassailable reputation of the one defamed. In Butts, supra, the U.S. Supreme Court pointed out 'We would hold, therefore, that Misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject of course to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury'. (Italics ours) Curtis Pub. Co. v. Butts, 87 S.Ct. p. 1994. They did not state that an Award of compensatory damages was necessary to justify punitive damages, or that punitive damages could only be awarded when compensatory damages were Awarded.

We therefore hold that the verdict of the jury was not, as the trial court found and declared, 'a finding for defendant'; nor was it a nullity as defendant contends, and a judgment for the defendant was not required by law for the reason that the jury made no award of actual damages, if the language complained of was libelous per se.

Plaintiff, at the time of the trial, was 69 years old and a teacher of business law, real estate and political science at Lincoln College. He had been licensed to practice law in Ilinois since 1922, in Missouri since 1921 and in New Mexico since 1947 or 1948. He was a graduate of Washington University Law School and practiced law in Edwardsville from 1922 until 1948. He had taught at Washington University Law School, at...