Appeal from the Circuit Court of Cook County, County
Department; the Hon. BEN SCHWARTZ, Judge, presiding. Summary
judgment for defendant affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
This is an action for libel by the plaintiff, Nathaniel Reed, against Bud Albanese, individually and doing business as the North Loop News. The defendant filed an answer, a motion for summary judgment and a supporting affidavit. The plaintiff filed a counteraffidavit. Summary judgment was granted and the plaintiff has appealed.
The basis of Reed's claim is an article published in the North Loop News on February 13, 1964, which he alleged was wholly false:
"Reed Jailed for Housing Violations
"Municipal Housing Court Judge Richard A. Napolitano last Friday issued a warrant of commitment to the House of Correction for Nathaniel J. Reed, Jr., in lieu of $2400.00 in fines for housing violations in the apartment building at 62-64 West Huron.
"Reed was found guilty of failing to provide additional means of egress, fire walls in stairwells and fireproof partitions and for failing to obtain a permit to make fire repairs."
The defendant's answer and his affidavit in support of the summary judgment motion alleged that the plaintiff was unknown to him, that the article was based on a release furnished by a news service and was privileged because it was a fair, true, correct and impartial report of a public proceeding conducted in the First Municipal District of the Circuit Court of Cook County. A certified copy of the court order was attached to the affidavit as an exhibit:
"CITY OF CHICAGO | v. | NO. 63 MC 443515 > QUASI CRIMINAL NATHANIEL J. REED, JR. | 228 North La Salle St. |
"This cause coming on for further proceedings herein, it is considered by the Court that the plaintiff have judgment on the finding of the Court entered herein and it is considered by the Court that the plaintiff have and recover of and from the defendant a fine in the sum of TWENTY-FOUR HUNDRED DOLLARS ($2400.00), . . . and that execution issue for the amount of said fine. And it appearing to the Court that said fine accrued to the plaintiff in consequence of the violation by defendant of the ordinance of the plaintiff described in the complaint herein . . . the Court finds . . . that said defendant has been duly and regularly convicted of the violation of said ordinance according to law, and that any person convicted of a violation of said ordinance, may, under the law, be imprisoned in the House of Correction of said City for non-payment of any fine imposed for such violation.
"Order warrant arrest and commitment to House of Correction until fine and costs paid or worked out at TWO DOLLARS ($2.00) per day providing the commitment shall not exceed SIX (6) MONTHS."
The plaintiff's counteraffidavit stated that he was an attorney and as such he was the registered agent of a building corporation; that as the agent he was sued by the City of Chicago for violations of the City's Building Code and that, although a fine had been imposed, he was never confined in jail. The plaintiff's argument on appeal is that the summary judgment was improper because his counteraffidavit raised a genuine issue as to whether he was jailed and this factual issue was material in determining whether publishing the newspaper article was libelous.
Summary judgment must not be granted if the pleadings, affidavits and exhibits show that there is a genuine issue as to any material fact. Ill Rev Stats (1965) c 110, § 57(3). The documents in the present case show that there is a genuine issue of fact because the article's headline said Reed was jailed and he flatly denied that he was. The question, however, is whether this issue is a material one and this depends on whether the article is libelous per se. The plaintiff alleged only general damages: that as an attorney and as a corporate agent he was injured in his businesses and reputation. If an article is libelous per se it is not necessary to allege special damages. Lorillard v. Field Enterprises, Inc., 65 Ill. App.2d 65, 213 N.E.2d 1 (1965); Cook v. East Shore Newspapers, Inc., 327 Ill. App. 559, 64 N.E.2d 751 (1946). But if an article is not libelous per se the complaint must allege the special, specific damage that resulted from its publication, and the failure to do so is a fatal defect. Hambric v. Field Enterprises, Inc., 46 Ill. App.2d 355, 196 N.E.2d 489 (1964); Parmelee v. Hearst Pub. Co., Inc., 341 Ill. App. 339, 93 N.E.2d 512 (1950).
The courts of Illinois have formulated a general definition of libel per se, and the decisions in the particular cases delineate the essence of the concept: words so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with. See, e.g., Wade v. Sterling Gazette Co., 56 Ill. App.2d 101, 205 N.E.2d 44 (1965) and Foster v. Boue, 38 Ill. App. 613 (1890). As a practical matter the categories of words which constitute libel per se will usually be those which, if spoken, were slander per se at common law. Whitby v. Associates Discount Corp., 59 Ill. App.2d 337, 207 N.E.2d 482 (1965).
In determining if an article is libelous per se the words complained of must be construed in the context of the article as a whole, and in doing this the headline of the article must be considered together with the text of the article. Wade v. Sterling Gazette Co., supra; Kulesza v. Chicago Daily News, Inc., 311 Ill. App. 117, 35 N.E.2d 517 (1941). The words must be read in their natural and obvious sense and if they are capable of an innocent interpretation they must be declared ...