APPEAL from the Appellate Court for the First District;
heard in that court on appeal from the Circuit Court of Cook
County; the Hon. JUDGES HENRY W. DIERINGER, and HAROLD G. WARD,
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1962.
Plaintiff, Eve Spiro John, instituted a libel action in the circuit court of Cook County to recover damages from the defendant, Tribune Company. There was a verdict and judgment for defendant, and plaintiff appealed to the Appellate Court, where the judgment was reversed and the cause remanded for a new trial. (John v. Tribune Co., 28 Ill. App.2d 300.) We have allowed defendant's petition for leave to appeal, despite the refusal of the Appellate Court to strike the remanding portion of its order in accordance with section 75(2) (c) of the Civil Practice Act, (Ill. Rev. Stat. 1959, chap. 110, par. 75(2) (c),) and have taken with the case a motion by defendant that this court grant such relief as may be necessary to require the Appellate Court to strike the remanding order.
Essential background for a consideration of the issues raised here show that the suit for libel was generated by a raid made by Chicago police on 4417 South Ellis Avenue in Chicago, after they had received a report that immoral activities were occurring at such address. The building was an apartment building and, at the raid, the building's owner, Dorothy Clark, and several women found in her apartment were arrested and charged with prostitution. Defendant first published a story about the raid and a second story about the court appearance of those arrested. The first publication read:
"Five women, one identified as a former girl friend of Tony Accardo, Capone gangster, were seized by vice squad police last night in a raid on a lavishly furnished nine-room apartment at 4417 Ellis Avenue.
"Detectives Jack Woessner, Edward Puhr, and Patrick Rafferty said they made the raid after an unnamed policeman paid a $100 fee to one of the women to obtain evidence of prostitution in the apartment. Two men seized as they were entering the apartment were questioned and released.
"Dolores Reising, 57, alias Eve Spiro and Eve John, who, police said, was known years ago as Accardo's woman friend, was held as the suspected keeper of the apartment."
The second publication was:
"Five women arrested by Detectives Jack Woessner and Edward Puhr of Hyde Park station in a vice raid at 4417 Ellis Ave. Saturday night will appear in Women's court Wednesday.
"Dorothy Clark, 57, who gave 4417 Ellis Av. as her address, was charged with being keeper of a disorderly house and selling liquor without a license. Police said she also is known as Dolores Reising, Eve Spiro, and Eve John, and was known years ago as a girl friend of Tony Accardo, Capone gangster."
Plaintiff's complaint, as ultimately amended, alleged that both articles were "of and concerning her" because her name was Eve Spiro John. Defendant moved to dismiss the complaint on the ground that neither of its publications was "of and concerning" plaintiff but, instead, were about Dorothy Clark-Dolores Reising, the plaintiff's landlady. The trial court sustained defendant's motion and dismissed the action. On appeal by plaintiff, however, the Appellate Court reversed the order of dismissal and remanded the cause with directions that defendant answer and that the cause be tried. (John v. Tribune Co. 19 Ill. App.2d 547). Thereafter, the cause was heard, the jury returned a verdict for defendant and judgment for defendant was entered on the verdict. On appeal by plaintiff the Appellate Court again reversed the judgment for defendant, this time for trial errors, and remanded the cause for a new trial. (28 Ill. App.2d 300.) As previously related, the matter is now before us on leave to appeal granted.
Under the procedural background existing, the order of the Appellate Court in the first appeal is not binding upon us, and we may now review it as a part of the record in the case. (Hall v. Chicago and North Western Railway Co. 5 Ill.2d 135, 146-148.) Accordingly, defendant has renewed its attack on plaintiff's complaint and the first issue for determination is whether defendant's language can be read as "of and concerning" the plaintiff as she alleged in her complaint. Numerous decisions hold that whether an article is susceptible of the construction for which a plaintiff claims is a question of law for the court, to be resolved by reading the offending language stripped of innuendo. Latimer v. Chicago Daily News, Inc., 330 Ill. App. 295; Life Printing and Publishing Co. v. Field, 324 Ill. App. 254; Kulesza v. Chicago Daily News, Inc. 311 Ill. App. 117; Duvivier v. French, 104 Fed. 278.
Under the affidavits filed pursuant to section 48 of the Civil Practice Act, plaintiff was a 27-year-old practicing psychologist, and resided in an apartment below the one raided. Her maiden name had been Eve Spiro and her name at the time, although divorced, was Eve John. She was the only person with that name at the address, but was in no manner involved with the raid, or any of the immoral activities of her landlady.
Neither of defendant's articles identifies more than one individual as the person arrested and charged as being the keeper of the disorderly house, thus the defendant's language is either "of and concerning" the plaintiff's landlady or is "of and concerning" the plaintiff. The publications cannot, as they are written, be "of and concerning" both persons. The plaintiff is not 57 years of age, has never used the names Dorothy Clark or Dolores Reising, and is not the only person who, at the time of the publication, resided at 4417 South Ellis Avenue. No claim is made that the publications refer to plaintiff directly, but her contention that the language is "of and ...