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Lundstrom v. Winnebago Newspapers

JULY 12, 1963.

MILTON A. LUNDSTROM, PLAINTIFF-APPELLANT,

v.

WINNEBAGO NEWSPAPERS, INC., A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Reversed and remanded with directions.

MCNEAL, PJ.

DOVE, J.

Rehearing denied September 19, 1963.

On January 21, 1959, Milton A. Lundstrom filed his two count complaint in the District Court of the United States for the Northern District of Illinois, Western Division, against Winnebago Newspapers, Inc., a Delaware corporation, and several individual defendants. By the first count plaintiff sought to recover damages resulting to him by reason of the publication of an alleged libelous article in the Rockford Morning Star, published by the defendants, on January 23, 1958, and by the second count he sought a recovery by reason of another alleged libelous article appearing in the same newspaper on January 25, 1958.

On February 4, 1959 a two count complaint was filed in the Circuit Court of Winnebago County. The first count alleged the same cause of action which was set forth in count one of the complaint filed in the Federal Court, and the second count alleged the same cause of action which was set forth in count two of the complaint filed in the Federal Court.

On March 22, 1959 the United States District Court entered an order finding that defendant corporation was a citizen of the State of Illinois within the meaning of U.S.C. Title 28, sec 1332 and therefore the requisite diversity of citizenship did not exist, and dismissed the cause of action.

In the proceeding pending in the Circuit Court of Winnebago County, the defendants filed their several motions to dismiss, which were sustained, and from an appropriate final order of dismissal an appeal was prosecuted to this court, resulting in an affirmance of that judgment. Lundstrom v. Winnebago Newspapers, Inc., 27 Ill. App.2d 128, 169 N.E.2d 369.

Thereafter the instant complaint, also consisting of two counts, was filed in the Circuit Court of Winnebago County, directed only against Winnebago Newspapers, Inc. The first count among other things charged that defendant was the publisher of the Rockford Morning Star, a newspaper of general circulation in and about the City of Rockford; that on January 23, 1958 the defendant, maliciously intending to injure the plaintiff in his good name and reputation, published a false and defamatory charge of and concerning the plaintiff, "that in his capacity of Liquor Commissioner he had acted in complicity in the acceptance of a bribe." The article referred to reads:

"WHO GOT $7,000 IN BAR DEAL?"

(Underneath this headline appeared three cuts, one from a photograph of the plaintiff, one from a photograph of Carl Calacurcio, and the other from a photograph of Carroll H. Johnson. Below these newspaper cuts appeared the following:)

"Carl Calacurcio, left photo, 604-15th Ave., testified before the city liquor commission Wednesday afternoon that he received $7000 from James E. Virgili for a city liquor license after Calacurcio took Virgili to the office of former Mayor Milton A. Lundstrom, center photo, last April and arranged for Virgili to receive a license which had been surrendered by the Ken-Rock Legion post. Calacurcio testified that he retained $850 of the money and gave $5800 to Carroll H. Johnson, right photo, who then was serving as a member of the city zoning board. Johnson, under oath, denied that he received the money."

Count two of this complaint alleged that the defendant, intending to injure the good name and reputation of the plaintiff, published in the Rockford Morning Star, on January 25, 1958, the following false and defamatory matter of and concerning the plaintiff, "that in his capacity of Liquor Commissioner he had acted in complicity in the acceptance of a bribe." This article appeared on the front page of the newspaper with these headlines:

"LUNDSTROM ISSUED MYSTERY LICENSE ILLEGALLY: Collins"

"Former Mayor Milton A. Lundstrom had no authority to issue a city liquor license last April 17 to James F. Virgili, who says he paid $7000 for a Class A license after Ken-Rock Legion Post ...


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