Welch v. Chicago Tribune Co.

• Decision Date: 28 October 1975
• Docket Number: No. 60427,60427
• Parties: Thomas M. WELCH, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY and Cooper Rollow, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 539

340 N.E.2d 539

34 Ill.App.3d 1046

Thomas M. WELCH, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY and Cooper Rollow, Defendants-Appellees.

No. 60427.

Appellate Court of Illinois, First District, Second Division.

Oct. 28, 1975.

Rehearing Denied Jan. 14, 1976.

Richard J. Aronson, Chicago, for plaintiff-appellant.

Kirkland & Ellis, Chicago (Don H. Reuben, Lawrence Gunnels, John W. Conniff, Chicago, of counsel), for defendants-appellees.

DOWNING, Presiding Justice.

Thomas M. Welch (plaintiff) filed a complaint for libel against the Chicago Tribune Company and Cooper Rollow, Tribune sports editor (defendants). The circuit court of Cook County granted defendants' motion for summary judgment.

The only issue before this court on appeal is whether the trial court erred in granting the motion for summary judgment.

In considering defendants' motion for summary judgment, the trial court had before it plaintiff's complaint, defendants' answer, plaintiff's reply, defendants' answers to plaintiff's interrogatories, and briefs by both plaintiff and defendants on the issues of law involved in the case. The briefs in this court referred to facts established by depositions taken in preparation for this case, but the depositions were not filed with the trial court until after the motion for summary judgment had been granted. No affidavits were filed respecting the motion for summary judgment. In a post-judgment order permitting the filing of the depositions, the court denied a motion for rehearing of the summary judgment motion. Plaintiff appeals.

This court shall consider all matters of record, including the depositions filed after the motion for summary judgment was granted. ¹ These include depositions of plaintiff (Thomas Welch), defendant (Cooper Rollow) and two assistant editors of the sports department (Ted Anthony Damata and David Moylan). There has been no objection to a consideration of these depositions on this appeal, and both plaintiff and defendants have referred to these depositions in their briefs before this court.

The undisputed facts disclosed by the pleadings and depositions on file in this case are as follows. Plaintiff was employed by the sports department of the defendant newspaper from October, 1963 to August, 1970. In August of 1970, plaintiff's position with the sports department was terminated by a letter delivered to him and signed by Cooper Rollow (defendant), sports editor. After notifying plaintiff of his termination, defendant Rollow, in consultation with two of his associate editors, posted a memorandum notifying the members of the sports department of the reasons for plaintiff's termination. The memorandum read:

Aug. 7

'Tom Welch's services have been terminated as of this date because of alcoholism, inefficiency, lack of punctuality, and unreliability.'

(signed)

Cooper Rollow

This memorandum was posted on a bulletin board at the edge of the sports department. A few minutes after the memorandum was posted an unidentified person, not a member of the sports department, passed by the bulletin board, read the memorandum and laughed. This incident caused Rollow to remove the memorandum from the board and put a copy of it in the mailbox of each person connected with the sports department. Persons with mailboxes in the sports department included not only regular employees, but phone boys and stringers. ²

Plaintiff's complaint denies the truth of the statements made in the memorandum and alleges plaintiff was told his termination was the result of economic conditions. Plaintiff further alleges defendants knowingly published these false statements with malice and an intent to injure plaintiff. Plaintiff alleges he was injured in his reputation and suffered actual damages of $100,000 and prays for additional exemplary damages of $100,000.

In their answer defendants admit the posting and distribution of the memorandum, but they deny the allegation plaintiff had been told his termination was the result of economic conditions; they further deny the memorandum was false and defamatory and that it was published with an intent to injure plaintiff; they also allege the memorandum was privileged and nonactionable; the information contained in the memorandum was true; the information was never communicated to anyone other than Tribune employees, thus there was never an actionable publication; the language of the memorandum was protected by the guarantees of free speech; and the complaint failed to state a claim on which relief could be granted.

Plaintiff filed a reply denying all of the defenses alleged in defendants' answer.

After answering interrogatories, defendants moved for summary judgment. Plaintiff's brief in response to defendants' motion for summary judgment asserted the memorandum was libel per se and special damages need not be pleaded; the memorandum was not privileged since it was overly broad and not made in good faith; and the issues of malice and truth were fact issues to be determined by a jury which plaintiff had demanded. Defendants filed a brief in answer to plaintiff's brief on defendants' motion for summary judgment arguing the memorandum was qualifiedly privileged; it was never published; and the statement itself was substantially true.

After considering the briefs and oral arguments of the parties, the trial court granted defendants' motion for summary judgment. No grounds were given for the decision in the order, nor in any statement made by the court during the proceedings. On plaintiff's motion, after the order was entered, the trial court allowed the filing of the depositions, but denied a motion for rehearing.

I.

Section 57 of the Illinois Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 57), provides summary judgment should be granted when '* * * the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.' (Emphasis supplied.) Summary judgment provides a means of disposing of cases with dispatch, but it is a drastic method and should only be allowed when the right of the party to invoke that drastic method is free from doubt--it must not be used to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Lumbermens Mutual Casualty Co. v. Poths (2nd Dist. 1968), 104 Ill.App.2d 80, 87, 243 N.E.2d 40; Roberts v. Dahl (1st Dist. 1972), 6 Ill.App.3d 395, 405, 286 N.E.2d 51; Hendricks v. Deterts (4th Dist. 1973), 13 Ill.App.3d 976, 978, 301 N.E.2d 625.

In reviewing the trial court's granting of summary judgment, we must consider all grounds urged and facts revealed in that court to determine if a genuine issue as to a material fact remained to be determined by a jury and whether defendants were entitled to summary judgment as a matter of law. (Kamberos v. Schuster (1st Dist. 1971), 132 Ill.App.2d 392, 398, 270 N.E.2d 182.) As stated in Lumbermens 104 Ill.App.2d at page 88, 243 N.E.2d at page 45, '(a) summary judgment should then be granted where the moving party's right thereto is clear and free from doubt.'

A.

Plaintiff contends defendants were not entitled to judgment as a matter of law on the defense of qualified privilege because defendants did not prove the memorandum satisfied the criteria required to claim a privilege; and even if the criteria were met, the question of malice was a factual issue to be determined by a jury.

The following elements are essential in establishing the defense of privilege: good faith by the defendant, an interest to be upheld, a statement limited in its scope to that purpose, a proper occasion, and publication in a proper manner and to proper parties only. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 349, 243 N.E.2d 217; Judge v. Rockford Memorial Hospital (2nd Dist. 1958), 17 Ill.App.2d 365, 377, 150 N.E.2d 202.) The party asserting the privilege bears the burden of proving the doctrine is applicable to his case. See Colucci v. Chicago Crime Commission (1st Dist. 1975), Ill.App., 334 N.E.2d 461 (pp. 13-14, 1975).

Defendants claimed they acted in good faith. At the time of plaintiff's termination there was an economic recession and a prevailing rumor that the Tribune was about to begin laying off employees; Rollow believed for this reason that an unexplained dismissal of plaintiff would detrimentally affect morale and subsequent work performance within the sports department. Furthermore, defendants asserted there must be a full and frank disclosure concerning employee conduct detrimental to the interests of the company in order to discourage other employees from engaging in similar conduct, and prevent inaccurate and irresponsible newspaper work. Even if these purposes are assumed to be valid, in our opinion defendants must show that the memorandum was issued in a proper manner, to proper parties and in language limited to the duty they sought to uphold.

The memorandum was admittedly posted on a bulletin board and viewed by a person outside the employ of the sports department. When the memorandum was taken down, it was distributed to all persons connected with the sports department, including stringers. It is difficult to determine how notice that plaintiff's termination was due to alcoholism would prevent fear of economic cutbacks within the sports department when stringers were not even on the payroll of that department. Furthermore, in our opinion the language of the memorandum was overly broad. Defendants admit they were not having similar problems with other employees, so a notice stating plaintiff was not dismissed for economic reasons, or that he was dismissed for unsatisfactory performance would have been sufficient to accomplish their alleged purposes. We believe it is not clear on the facts before this court that defendants have established...