Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Reversed and remanded.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
On June 20, 1964, Radio Station WROK, broadcasting in Winnebago County, carried the following story:
"The operator of Windsor Lake, Clark Baldwin, denies charges of alleged inadequate lifeguard protection and unhealthy swimming conditions at the lake. However, such complaints may touch off investigations by the Winnebago County Board of Supervisors to come up with a law enforcing rules and regulations of such swimming facilities. County Health Officer, Robert Anderson, has reported complaints of swimmers suffering skin infections from swimming in the lake. Rockford Township Supervisor, Marie Sheehe, has received complaints the bottom of the lake is dirty. Officials have been peppered with complaints against the lake since the drowning this month of a fifteen-year-old youth at the lake."
The story had apparently been prepared by the defendant, Rockford Newspapers, Inc., although it was not published in the newspaper. The newspaper supplied the story to the radio station, and the radio station broadcasted it on several occasions on that day.
The plaintiffs, Windsor Lake, Inc., an Illinois corporation, and Clark Baldwin, its President, brought this suit against the radio station and the newspaper in four counts, alleging that the report was libelous per se, or in the alternative that it was libelous per quod, had been motivated by malice and that the plaintiffs had suffered special damage.
The defendants made a motion to dismiss all counts of the complaint on the grounds that the story was not libelous, in the alternative that it came within the rule of qualified privilege, and that plaintiffs had failed to allege actual malice or special damage.
The trial court granted the motion and dismissed all counts of the complaint. Thereupon, the plaintiffs elected to stand upon their complaint and have brought the case to this court.
In oral argument before us, the plaintiffs concede that they did not allege special damage in count IV of their complaint, and they have abandoned that count on appeal.
The case is presented to us upon plaintiffs' complaint, now in three counts, and defendants' motion to strike. It is fundamental that such a motion admits all facts well pleaded, Palier v. New City Iron Works, 81 Ill. App.2d 1, 5, 225 N.E.2d 67 (1967).
Plaintiffs' complaint denies that the County Health Officer and the Township Supervisor received the complaints or had the conversations described in the story. From the state of the record before us we are unable to determine the truth of these allegations, but, at the very least, they create issues of fact not susceptible to dismissal by motion. It appears to us that the complaint does indeed state a cause of action and that the case should be reversed and remanded for further proceedings to determine the factual issues presented.
Since the case must be remanded, we deem it appropriate to comment upon the various issues raised by the parties. The defendants allege that the story is subject to a qualified privilege, since it is a fair report of governmental proceedings. Section 611 of the Restatement of Torts provides:
"The publication of a report of judicial proceedings or proceedings of a legislative or administrative body or an executive officer of the United States, a State or territory thereof, or a municipal corporation or a body empowered by law to perform a public duty is privileged although it contains matter which is false and defamatory if it is: (a) accurate and complete or a fair abridgment of such proceedings and (b) not made solely for the purpose of causing harm to the person defamed."
In Lulay v. Peoria Journal-Star, Inc., 34 Ill.2d 112, 214 N.E.2d 746 (1966), the Illinois Supreme Court held that a publication of the official proceedings of the Health Department of the City of Peoria was subject to a qualified privilege which could only be overcome by allegations and proof of actual malice and special damage. However, in the Lulay case there was a complete trial on the merits and a jury verdict in favor of the plaintiff. There has been no trial in this case and indeed the merits are not before us. We are unable to conclude from defendants' motion that there was any governmental "proceedings." There may well have been a "proceedings" but that is a matter of fact which must be determined by the trial court.
If, in fact, there was a governmental proceedings then the qualified privilege would arise and the plaintiff could not recover unless he has alleged and proven actual malice and special damage, Lundstrom v. Winnebago ...