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Jamison v. Rebenson

APRIL 28, 1959.

WILLIAM F. JAMISON, PLAINTIFF-APPELLANT,

v.

WALTER A. REBENSON, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook county; the Hon. RICHARD B. AUSTIN, Judge, presiding. Reversed and remanded with directions.

JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 15, 1959.

This is a libel and slander action by an international union organizer against several officers and an employee of a local union. The suit was dismissed on defendants' motion and plaintiff has appealed.

The motion raised the question of the sufficiency of the three count amended complaint and the question before us is the propriety of the ruling on the motion. The well pleaded facts are admitted by the motion, but the amended complaint, since this was before verdict, must be construed strongly against plaintiff, Field v. Oberwortmann, 14 Ill. App.2d 218.

Plaintiff represented an international union as organizer for a Chicago local. A large number of members and prospective members of the local were women. In January, 1955, Mildred Walter, a local officer, and Valeria Gniodeh, an employee of the local, each made an affidavit "witnessed" by Rebenson, Kenny and Cohoon. These affidavits are the basis of the suit and part of the complaint which charges all those defendants, individually, and Kenny, Cohoon and Rebenson, in conspiracy, with libel and slander.

The alleged libelous material relied on consists of the sworn statement of Mildred Walter, referring to plaintiff, "I surmised that his intentions were not honorable when he made improper advances and his chosen route commenced to lead to isolated territory. . . . After I threatened to vacate his automobile . . . he then agreed to control his impulse. . . . This statement is made . . . in order to save others the same embarrassment," and the sworn statement of Valeria Gniodeh that plaintiff "made ungentlemanly and improper advances to me and I was forced to flee next door . . . Rebenson and Kenny . . . offered their apologies in behalf of the union. . . . This signed statement is made . . . in the hope that others will know of Mr. Jamison's character and thus be forewarned against . . . the same embarrassment."

After the affidavits were made, Rebenson and Kenny, at Cohoon's request, presented them to the executive board of the international union demanding plaintiff's discharge or his transfer from the Chicago area. Plaintiff appeared and defended himself, but the executive board transferred him from Chicago to Detroit, Michigan, to cover the states of Michigan, Ohio and Indiana.

Counts One and Three charge that the libel was intended, pursuant to a course of harassment, to cause plaintiff's discharge or force his transfer from Chicago, where he and his family had lived for more than fifteen years and where he enjoyed the good reputation which defendants planned to destroy. Count Two alleges the same purpose and damages, but is based on slander. Count Three alleges conspiracy in the course of harassment.

Plaintiff contends that the complaint sufficiently alleges defamation tending to injure him in his vocation. If this contention is sound the trial court erred in its ruling (Ward v. Forest Preserve District, 13 Ill. App.2d 257, Cobbs v. The Chicago Defender, 308 Ill. App. 55) in the absence of overriding circumstances urged by defendants. Defendants asserted in their motion for involuntary dismissal (Ch. 110, Sec. 48 Ill. Rev. Stat. 1957) that the amended complaint on its face contained the overriding affirmative matter which justified the dismissal of the suit. The first question is whether assuming but not deciding, that the language complained of is defamatory, does the complaint contain affirmative matter defeating the claim (Sec. 48(1) (i)).

The amended complaint shows that the language was published in a "qualifiedly privileged communication," Judge v. Rockford Memorial Hospital, 17 Ill. App.2d 365, Schlaf v. State Farm Mut. Auto Ins. Co., 15 Ill. App.2d 194, 199, Anderson v. Malm, 198 Ill. App. 58, 62, 63. This is so because, as officers of the local, Rebenson, Kenny and Cohoon had the duty to inform the executive board of the international of the charges against plaintiff, Judge v. Rockford Memorial Hospital, 17 Ill. App.2d 365, Schlaf v. State Farm Mut. Auto Ins. Co., 15 Ill. App.2d 194, Bentley v. Teton, 19 Ill. App.2d 284.

Having alleged facts constituting an occasion of qualified privilege, plaintiff was required to allege that defendants lacked good faith and were actuated by malice, Anderson v. Malm, 198 Ill. App. 58, 63, Schlaf v. State Farm Mut. Auto Ins. Co., 15 Ill. App.2d 194, 199. This would normally be done in a reply to an answer but the amended complaint alleges defendants acted maliciously with design to injure plaintiff in his employment. The trial court accordingly had before it the necessary allegation.

Defendants' motion admits the allegations that the affidavits are false, Field v. Oberwortmann, 14 Ill. App.2d 218.

Assuming again but not deciding, that the words are defamatory, this admission is sufficient to allege liability of Mildred Walter and Valeria Gniodeh as authors of the affidavits. The good objective of saving other local members embarrassment does not justify lying, and there was no qualified privilege to falsely defame another under the guise of a duty.

The complaint, as we have pointed out, presents an occasion of qualified privilege on the part of Rebenson, Kenny and Cohoon, inasmuch as there is no allegation that they knew, when the affidavits were composed in their presence, that the statements were false. There is nothing in the complaint to show that they should not have believed what affiants swore to, and consequently construing the complaint strongly against the pleader, we think these ...


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