Appeal from the Circuit Court of the Tenth Judicial Circuit of
Peoria County; the Hon. WILLIAM J. WIMBISCUS, Judge, presiding.
Judgment adverse to defendant in libel action reversed.
Rehearing denied December 9, 1966.
Plaintiffs, Catherine Mitchell and Margaret Adams Murphy, who are sisters, filed a complaint in the Circuit Court against The Peoria Journal-Star, Inc., a corporation engaged in the business of publishing a daily newspaper at Peoria, to recover damages for an alleged defamation, of and concerning them, arising from defendant's publication of the following article in the evening edition of its newspaper for June 22, 1962:
"Liquor Violators Fined by Default.
"Two women and a man charged with violation of the city liquor sales ordinances were found guilty by default this morning and were fined $50 each by Justice of the Peace Lester Gerber.
"Arrested in a Sunday morning raid at the Men's Social Club, 2406 1/2 SW Adams St., were Margaret M. Adams, 1202 W. Smith St., Catherine H. Mitchell, of the same address, and James D. Murphy, 714 Spring St."
After alleging the publication of the foregoing article, the amended complaint averred that plaintiffs were engaged as partners in a tavern business known as the Shelly Tap, and that as a result of the defamation, the sales, income and receipts of said business were greatly reduced and that plaintiffs otherwise also sustained special pecuniary damage. The defendant admitted the publication of the article, denied that it was defamatory, and asserted the defense that the publication is true, and was published for justifiable ends under a qualified privilege to report judicial proceedings.
At the conclusion of the trial, the court instructed the jury, at the request of plaintiffs, that the publication complained of is libelous per se; that defendant is responsible for the acts of its employees; that compensatory damages are to compensate for financial injury; that punitive damages are an award made "to deter others from the commission of like offenses"; that if plaintiff is entitled to recover, punitive damages may be given as well as compensatory damages; and that the wealth of defendant may be considered in determining the amount of punitive damages. In addition, the trial court, at plaintiff's request, submitted the following special interrogatory:
"The jury is instructed, based upon the evidence on the whole case, to answer the following question of fact:
"1. Did the defendant make the defense of truth of the matter charged, the libelous per se publication, with malicious intent?"
The jury answered the special interrogatory affirmatively, returned verdicts in favor of the plaintiffs, awarding to each the sum of $4,000 for compensatory damages, and to each the sum of $12,500 for punitive damages. Defendant perfected an appeal from judgments entered on these verdicts and attempted to invoke the jurisdiction of the Supreme Court for a direct appeal on a constitutional issue. That court entered an order adjudicating that it has no jurisdiction for a direct appeal in this case and transferred the matter here.
In support of its alternative prayer for a reversal and judgment, or for a new trial, defendant argues that the judgments of the trial court abridge the guaranties of the First and Fourteenth Amendments to the Constitution of the United States, and of article II, § 4 of the Constitution of the State of Illinois; that the trial court erred in giving certain instructions for plaintiffs and in refusing some for defendant, and in submitting the special interrogatory; that defendant's motions for a directed verdict at the close of plaintiffs' case, and at the close of all the evidence, and for judgment N.O.V. and notwithstanding the special interrogatory, were erroneously refused; that the judgments are contrary to the manifest weight of the evidence and to the law; and that plaintiffs were erroneously permitted to testify concerning a decrease in the gross receipts of their business.
In Whitby v. Associates Discount Corp., 59 Ill. App.2d 337, 207 N.E.2d 482, we had occasion to review the Illinois decisions on the law of defamation. Under earlier decisions a slander was actionable per se or per quod, depending upon:
1. Whether the utterance complained of, by the plain and ordinary meaning of the words used, without resort to innuendo, fell within four certain categories of imputations (i.e., imputations of crime, of loathsome disease, of unchastity to a woman, or affecting one's business, profession, office or calling), or
2. Whether it either (a) fell outside these categories, or (b) required a construction of the words, and resort to consideration of circumstances attending the ...