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Turley v. W.t.a.x.

MAY 6, 1968.

M.D. TURLEY, PLAINTIFF-APPELLANT,

v.

W.T.A.X., INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. WILLIAM H. CHAMBERLAIN, Judge, presiding. Affirmed.

TRAPP, J.

The trial court granted defendant's motion to dismiss plaintiff's amended complaint for libel. Plaintiff appeals.

Plaintiff is a professional architect and structural engineer engaged in the practice of his profession with offices in Springfield, Illinois. Defendant is an Illinois corporation with its radio broadcasting station situated in Springfield.

The alleged libel relates to the services by plaintiff as architect for the design and acquisition of furnishings and equipment for the new County Building in Sangamon County.

The pleadings alleged the following facts: Plaintiff's original specifications called for acquisition by the County of 132 chairs, known as "Steelcase No. 1342, side chair with chrome frame, vinyl upholstery," Manufacturer's Number 1342. The retail price of this chair was $110.

At the public letting of bids, one of the suppliers made an alternate bid with respect to chairs, tendering a bid of 132 chairs known as "GF 40/4." The retail price of such chair it alleged to be $26.95.

On October 20, 1965, and thereafter, the defendant prepared and installed a certain window display in the public display area of a store building located at 223 South Fifth Street, in the downtown area of the City of Springfield. The window display consisted of two chairs, virtually side by side, one chair being the Steelcase Number 1342, with a card on the seat thereof stating: "Steelcase 1342 Retails at $110," the other chair being the GF 40/4 chair with a card on the seat thereof stating: "General Fireproofing 40/4 Retails at $26.95."

A placard was placed on the floor slightly to the left of the Steelcase chair bearing the imprint: "County Building Specs. Called for 132 Chairs Like This." A card comparable in size and printing was placed slightly to the left of the GF 40/4 chair bearing the legend: "County Building Architect Allowed Supplier To Substitute This As Equal." The amended complaint alleges that such legend is false.

Counts I, II, III and IV of the amended complaint also allege that on October 12, 1965, the defendant, by its newscaster was present at a meeting held by plaintiff with representatives of the communications media and suppliers, that the newscaster asserted in the presence of all those at the meeting, that Mr. Turley had approved the two chairs in question as equal, and Mr. Turley immediately asserted in response that he had not approved anything; that he would not render an approval until he had a chance to completely inventory the deliveries and check the deliveries item by item and determine exactly what items were located where; that plaintiff further asserted at this same meeting of October 12, 1965, that if in his opinion an item delivered was not an equal to the item specified, an adjustment would have to be made. Counts I, II, III and IV of the amended complaint each allege that, nevertheless, about eight days after the meeting of October 12, 1965, and without any consultation with Turley, the defendant did, on October 20, 1965, publish the said window display and the false statement therein contained; that such publication of the window display was made with actual malice, in that the publication was made by the defendant with knowledge that the statement was false or with reckless disregard of whether it was false or not; and that the publication was made of the plaintiff in his said office, profession and employment. Actual malice is not alleged in Counts V and VI, and special damages are not alleged.

The written judgment order upon which this appeal is taken orders dismissal of the amended complaint on the following grounds: Each Count fails to allege a libel per se and is, therefore, defective in its failure to allege special damages, each Count shows that the plaintiff was a public person and, Counts V and VI are defective for failure to allege special damages and the facts supporting the charges of actual malice. It appears that the trial court concluded that the allegations in Counts I, II, III and IV were sufficient to allege actual malice under the rule of New York Times Co. v. Sullivan, 11 L Ed2d 686.

The constitutional issue of freedom of the press having been raised by motion, we find that the trial court considered the question of the existence of a qualified privilege. The opinion of the court and his statements in the report of proceedings, as well as the briefs and arguments submitted, refer to plaintiff as having the status both of a public official and a public person. If the former, the rule stated in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L Ed2d 686, applies, while, if the plaintiff has the status of a public person, we must apply a possibly different rule stated in Curtis Pub. Co. v. Butts, 388 U.S. 130, 18 L Ed2d 1094.

Under the facts of this case the plaintiff had the status of a public official for purposes of determining the quantum of privilege applicable to the events at issue. In the Law of Torts, 2d ed, 1955, Prosser discusses the nature and extent of qualified or conditional privilege in connection with the law of defamation, chapter 19, § 95. He says, at p 620:

"The press, or anyone else, is privileged to discuss the administration of public affairs, and the conduct or qualifications of public officers or candidates and public employees as well as work to be paid for out of public funds. . . . in which the public has a legitimate interest."

In the Restatement of the Law of Torts, chapter 25, § 607, it is stated that the privilege of criticism applicable to public officials extends to criticizing the work of independent contractors paid for out of ...


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