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Hambric v. Field Enterprises

JANUARY 30, 1964.

ARTHUR HAMBRIC AND JOSEPHINE HAMBRIC, PLAINTIFFS-APPELLANTS,

v.

FIELD ENTERPRISES, INC., AND JACK MABLEY, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. ARTHUR A. SULLIVAN, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This is an action for libel which was brought to the court.

This is an action for libel which was brought to recover damages for an allegedly defamatory article written by the defendant Jack Mabley, and published in the Chicago Daily News, a newspaper owned by the defendant Field Enterprises, Inc. The defendants moved to dismiss the complaint on the ground that it was insufficient in law because the article was not reasonably susceptible to a libelous interpretation, did not identify the plaintiffs and the allegations of damages were general and vague. The motion was sustained. The plaintiffs elected to stand by their complaint, the suit was dismissed, judgment was entered for the defendants and the plaintiffs have appealed.

The motion to dismiss admitted the well-pleaded facts of the complaint but did not admit the conclusions of law or fact. The objection that the allegations of damages are general and vague was well founded. The complaint is in two counts. The first one alleges that the publication of the article damaged the plaintiff Arthur Hambric's good name, reputation and business, exposed him to public hatred and obloquy, attracted to his place of business persons of bad character whose presence tended to drive away respectable clientele and exposed him to constant investigation and harassment by the police department, all to his damage in the sum of $250,000. The second count alleges that the plaintiff, Josephine Hambric, wife of Arthur, was damaged to the extent of $150,000 by publication of the article which damaged her good name and reputation, exposed her to public hatred and obloquy, subjected her to derision, insults and indecent proposals, which caused her to become ill.

Allegations such as these are descriptive of general damages only; special damages must be alleged with particularity. Wright v. F.W. Woolworth Co., 281 Ill. App. 495. If the language used in the article was not libelous per se, if extrinsic facts and explanations were needed to show how it would be injurious, the plaintiffs were required to allege the special, specific damage that resulted from its publication. If the article was libelous per se, it was not necessary for them to allege special damages, because both damage and malice would be presumed from words obviously libelous. John v. Tribune Co., 28 Ill. App.2d 300, 171 N.E.2d 432; Cowper v. Vannier, 20 Ill. App.2d 499, 156 N.E.2d 761; Gogerty v. Covins, 5 Ill. App.2d 74, 124 N.E.2d 602; Campbell v. Morris, 224 Ill. App. 569. The issue in this case therefore narrows to this: was the article complained of defamatory per se? If it was, the failure to allege special damages is inconsequential; if it was not, the plaintiffs' complaint is defective.

The article carries the headline: "S. Side Vice Wide Open — Here's Proof" and, after intervening paragraphs (which are unknown to us because they were not attached to the complaint and are not in the record) is as follows:

"Leaving these saloons, the investigator entered one down the block at 458 E. 61st Street. About 30 men and women were in the place watching a woman stripping in the center of the floor.

"When she had removed all of her clothing, she gave a few shakes, then picked up her clothes and ambled to the rear of the saloon.

"Beer sold for 50 cents here, 15 or 20 cents higher than at competitors with no strippers."

It is uniformly held that words allegedly libelous must be read in their best possible sense and if they are capable of an innocent interpretation they must be declared non-actionable at law. John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105; Epton v. Vail, 2 Ill. App.2d 287, 119 N.E.2d 410; Tiernan v. East Shore Newspapers, Inc., 1 Ill. App.2d 150, 116 N.E.2d 896; Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d 742. Many cases hold that in determining if words are libelous per se, they must be read without the aid of innuendo to bring forth any latent, injurious meaning which may be imputed to them. Life Printing & Publishing Co. v. Marshall Field III, 324 Ill. App. 254, 58 N.E.2d 307; Latimer v. Chicago Daily News, Inc., 330 Ill. App. 295, 71 N.E.2d 553. Some cases hold that the court must view the words stripped of all innuendo, colloquium, or extrinsic or explanatory circumstances. Lundstrom v. Winnebago Newspapers, Inc., 27 Ill. App.2d 128, 169 N.E.2d 369; LaGrange Press v. Citizen Pub. Co., 252 Ill. App. 482. It also has been held that an averment of fact extrinsic to the words used in an article, and essential to an identification of the article with the person complaining, cannot be embodied in an innuendo. Voris v. Street & Smith Publications, 330 Ill. App. 409, 71 N.E.2d 338.

No matter by which of these standards the article in question is judged, it is not prima facie libelous. It merely states that on this one occasion, in a saloon at 458 E. 61st Street, a woman performed what is commonly known as a strip-tease act. At the worst there is an implication (because of the price charged for beer) that such acts may have been presented with some regularity. That is all. The article does not become libelous by construing it as a whole and reading it in relationship to the headline which accompanied it. The portion of the article complained of does not support the headline, and the headline does not expand the content of the article. One must turn to the complaint for background and information, for an interpretation of the article and to learn how it is susceptible of a defamatory meaning.

One must also resort to the complaint to ascertain its application to the plaintiffs, for the article does not name either plaintiff directly or indirectly and it does not even mention the name of the saloon visited by the investigator. However, we think recourse to a complaint is permissible insofar as it may be necessary for the purpose of identifying a person allegedly libeled. The prohibition against considering colloquium in ascertaining if an article is libelous per se (LaGrange Press v. Citizen Pub. Co., supra) seems to us to be unduly restrictive and illogical. The question of whether words are libelous per se is separate and distinct from the question of whether they refer to the plaintiff. National Refining Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763 (8th Cir).

The complaint by way of colloquium states that the so-called defamatory matter was written concerning the plaintiffs. It states by way of inducement that Arthur Hambric is the sole owner of a tavern at 458 E. 61st Street, that it is called "Josephine's Lounge" and that it is named after his wife who assists him in its operation; that he had a respectable clientele, had been in the tavern business for many years, enjoyed a good reputation and had the confidence of good citizens in the neighborhoods where his taverns had been located. Through the office of innuendo the defamatory imputation is explained to be that the article created the impression that the place was a hangout for prostitutes, that it pictured the plaintiffs as permitting vice in their tavern and as presenting lewd performances to attract business.

The article would more nearly approach being libelous per se if it is considered as being written in regard to the plaintiffs in their business or trade. Such words may be actionable without proof of special damages. Hudson v. Slack Furniture Co., 318 Ill. App. 15, 47 N.E.2d 502; Cavanagh v. Elliott, 270 Ill. App. 21. In Clifford v. Cochrane, 10 Ill. App. 570, ...


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