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Coffey v. Mackay

JANUARY 10, 1972.

THOMAS COFFEY, PLAINTIFF-APPELLANT,

v.

EDWARD MACKAY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Thomas Coffey, sued the defendants Edward MacKay, Lois MacKay, MacKay Publications, Incorporated, John B. Brust, d/b/a Brust Funeral Home, Roger B. Ytterberg and Leo A. Ozier, seeking damages based on an alleged conspiracy to destroy plaintiff's funeral business and to libel and slander him. The trial court first dismissed Ozier as a party defendant with prejudice but with leave to file in the Court of Claims. In a separate order the court dismissed the original single count complaint with leave to amend. Thereafter the court dismissed the amendment to the complaint, Count II, and the second amendment to the complaint, Counts III and IV. The plaintiff appeals from the orders dismissing the complaint and the amendments.

The allegations of fact in support of the various counts of the complaint are substantially the same. Coffey operated a funeral home in Lombard, Illinois, and was a member of the Du Page County Funeral Directors Association; Brust operated the only other funeral home in Lombard; the MacKays were the owners, officers and operators of MacKay Publications which published the "Lombardian", a newspaper with a large general circulation in Lombard and in Du Page County. Ytterberg was executive secretary of the Illinois Funeral Directors Association and editor of the Association's newsletter which had a wide circulation among members of the Association and other funeral directors in the State of Illinois and in many cities in surrounding states.

The MacKays and Brust on or about February 10, 1969, conspired among themselves to make false complaints against plaintiff in order to initiate investigations about his honesty, integrity, competence and as to his right to continue as a funeral director. These defendants conspired also to make false complaints to the Du Page County Funeral Directors Association that plaintiff had been fabricating obituaries for insertion in a local newspaper. The MacKays are charged with acts in furtherance of the conspiracy, consisting of incorrectly listing the name of a deceased, "Charles E. Sakis" as "Charles E. Fakis", in the February 12, 1969, edition of the "Lombardian", although the name was correctly listed in another Lombard paper and in the Chicago newspapers. The spelling was corrected in the February 19th edition. The MacKays then used the incorrect name in making subsequent complaints. Lois MacKay telephoned the president of the Du Page County Funeral Directors Association, one Schneider, and told him that plaintiff was running fake funerals and false obituaries. The MacKays and Brust contacted Ytterberg and told him to take action to take away plaintiff's right to operate as a funeral director; Ytterberg agreed with the MacKays and Brust to assist them in ruining plaintiff's good name and putting him out of business.

Ytterberg then complained orally and in writing to the Illinois Department of Public Health, Bureau of Vital Records, that plaintiff had inserted a number of false obituaries in the February 19th, 1969, issue of the "Lombardian"; made written complaint to the Illinois Department of Registration and Education that plaintiff had conducted fake funerals and had violated the Illinois Funeral Directors and Embalmers Act.

Ytterberg also inserted a news item in the March 28th, 1969, issue of the Illinois Funeral Directors Newsletter:

"A FUNERAL DIRECTOR who has reportedly been fabricating obituaries for insertion in a local newspaper — evidentally on the theory that they have a beneficial, and free, advertising effect — is being investigated by the Department of Registration and Education, the Bureau of Vital Records and the Internal Revenue Service. The investigators are seeking evidence of fraud, failure to file death certificates and unreported income."

knowing that the statements were untrue, and intending that readers, including funeral directors in this and neighboring states and other persons in related businesses, would know that the article referred to plaintiff although his name was not mentioned. It was further alleged that readers became curious about the identity of the person being investigated and were able to determine that the news item referred to the plaintiff.

The complaint alleged that the defendants acted with malice by making the alleged complaints knowing they were false and that plaintiff was damaged in amounts specified in the various counts. The complaint also alleged inconsistently that the defendants did not contact him to determine the truth or falsity of the allegations against him.

On appeal, plaintiff has filed a motion to amend the complaint (which we have taken with the case), seeking to allege that he was actually forced out of business.

After the original complaint was stricken with leave to plead over, plaintiff filed the pleading entitled "Amendment to Complaint" (Count II) and thereafter filed a pleading entitled "Second Amendment to Complaint" (Counts III and IV). Both amended pleadings incorporated certain allegations of the original complaint. Essentially, Count II charges a common law conspiracy to libel and slander plaintiff; Count III charges that defendants conspired to violate the Illinois Antitrust Act (Ill. Rev. Stat. 1969, ch. 38, par. 60-3(2); and Count IV charges the defendants conspired to acquire monopoly power over the funeral business in the Lombard area for the purpose of excluding competition and fixing prices, also, in violation of the Illinois Antitrust Act (ch. 38, supra, par. 60-3(3).

• 1-3 The sufficiency of the pleadings is to be tested by rules which have been often stated. Pleadings are to be liberally construed with a view that controversies shall be determined on their merits to do substantial justice, rather than determined on technicalities. (Ill. Rev. Stat. 1969, ch. 110, pars. 33(3), 42(2); (Fitzgerald v. VanBuskirk (1968), 96 Ill. App.2d 432, 435, 436.) (See also Monroe College of Optometry v. Goodman (1947), 332 Ill. App. 78, 91, 92, 93.) Plaintiff is not required to allege facts with precision which to a greater degree of exactitude are within the knowledge of defendants rather than the plaintiff. (Field v. Oberwortmann (1957), 14 Ill. App.2d 218, 221.) A motion to dismiss admits allegations which are well pleaded, but not conclusions. Stenwall v. Bergstrom (1947), 398 Ill. 377, 383; Dean v. Kirkland (1939), 301 Ill. App. 495, 503.

• 4 The amendment to the complaint is framed on a theory of a common law conspiracy by the various defendants. The gist of this action is not the conspiracy itself but the acts done and the damages caused by overt actions of the alleged conspirators in pursuance of their common cause. Kovar v. Bremer (1935), 281 Ill. App. 505, 508 (see also Kovar v. Bremer (1938), 294 Ill. App. 225, 231; Dean v. Kirkland, 301 Ill. App. 495, 504, supra; Field v. Oberwortmann, 14 Ill. App.2d 218, 226, 227 supra.

Plaintiff asserts that the item in the Illinois Funeral Directors Newsletter constitutes a libel against him. He alleges that other funeral directors and persons in related businesses knew or became aware after reading the news item that it referred to him. Plaintiff argues that the pleading is sufficient and that opinion evidence as to the ...


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