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Fopay v. Noveroske

AUGUST 14, 1975.




APPEAL from the Circuit Court of Clay County; the Hon. E. HAROLD WINELAND, Judge, presiding.


This appeal is from a judgment entered in Clay County upon a jury verdict for libel in favor of plaintiff-appellee, Joseph Fopay, against defendant-appellant, Richard Noveroske, in the amount of $27,500 compensatory and $20,000 punitive damages.

Plaintiff alleged in his complaint that while he was chief x-ray technician at Clay County Hospital, defendant, chief radiologist at the hospital, maliciously published four letters by circulating them to other radiologists, hospitals, and representatives of national professional radiologists' organizations. The complaint alleged that the publications charged plaintiff with dishonesty and incompetency in the performance of his duties at Clay County Hospital and that the charges were false. The complaint prayed for general, special, and punitive damages. Plaintiff based his prayer for special damages on the loss of employment and inability to find employment elsewhere as an x-ray technician. The prayer for special damages was subsequently stricken. In his answer, defendant denied plaintiff's specific allegations and pleaded as affirmative defenses that the letters were published in good faith without malice and were privileged; that the letters were constitutionally protected because plaintiff is a public official and the operation of the hospital is a matter of public concern; that the matters contained in the letters were true; and that plaintiff had consented to publication of all or part of these letters.

The evidence at the trial was as follows. Plaintiff had been chief x-ray technician at Clay County Hospital for 10 years. His duties included the taking of x-rays, the maintenance of the x-ray room and the supervision of two assistants, Zota Croughan and Shirley Phillips. Defendant served as radiologist at the hospital on a part-time basis and his responsibilities included the supervision of the work of the plaintiff. On June 16, 1966, defendant approached the administrator of the hospital, Lester Gerber, with a memo alleging that on three instances plaintiff charged illegal "call backs" *fn1 for x-ray work done, that plaintiff kept an unclean department, and that plaintiff was incompetent as an x-ray technician. Defendant was told to wait until he got his Illinois license before pressing the matter further.

Defendant obtained his license and prepared a September 8, 1966, memorandum which set out in detail the allegations of the illegal call backs, uncleanliness, and incompetence. Defendant presented this memorandum to the medical staff of Clay County Hospital on September 14, and to the Lay Board of the hospital at a meeting attended by plaintiff and his attorney on September 28. It was here that defendant formally confronted plaintiff with the charges in the memorandum. Also at this meeting defendant charged plaintiff for the first time with the "illegal" sale of x-ray film. Defendant asked plaintiff to resign and plaintiff refused. The Lay Board refused to take any action relative to the charges until further investigation, and plaintiff was given more time to answer the charges.

Sometime after the September 28 meeting, defendant mailed a copy of the memorandum to the American Society of Radiological Technologists. On September 29, defendant wrote a letter to the Lay Board alleging that plaintiff had illegally sold x-ray film belonging to the hospital and had kept the proceeds. Since this is perhaps the most serious charge set out in the letters, detailed exposition of the facts is in order. In the fall of 1965, plaintiff approached Dr. Van Sandt, defendant's predecessor, and told him of the lack of storage space for x-ray films. He requested permission to remove some of the old films, sell them, and keep the proceeds as compensation for his extra work. Van Sandt told plaintiff he would approve the plan, if other members of the medical staff approved. Plaintiff approached Dr. Naney and Dr. Hutchins, members of the staff, who gave similar approval. Finally, plaintiff contacted Dr. Foss, chairman of the interim committee operating the hospital, and received his approval.

In January, 1966, plaintiff, working in his off hours, processed and sold 750 pounds of used film to the Silvermat Company and received a check for $157.50.

In his September 29, 1966, letter to the Lay Board, the defendant reiterated his charge that this sale of x-ray film was illegal and included a copy of the check received by plaintiff. Dr. Foss learned later of this charge and wrote a letter dated October 8, 1966, to Mr. Gerber, the administrator, stating that he had given verbal approval to plaintiff to dispose of old, used film in this manner. He further stated that it was inconceivable to him that plaintiff had done anything to warrant dismissal.

Defendant became aware of this letter and wrote a memorandum, dated October 13, 1966, in which he alleged the sale of recent as well as old x-ray film and questioned the authority of Dr. Foss to authorize plaintiff to sell hospital property and keep the proceeds. At trial, however, a portion of this recent film was produced from the records of the radiology department.

After the Lay Board, medical staff and administrator persisted in refusing to dismiss plaintiff, defendant wrote an October 20, 1966, letter to the medical staff and Lay Board in which he restated his previous charges and threatened to resign if plaintiff were not discharged by October 26, 1966.

While there is some dispute about the scope of publication of these letters, it is clear that all four were mailed to and received by the executive secretary of the American Society of Radiological Technologists, the executive director of the American College of Radiology and the executive director of the American Registry of Radiological Technologists. The documents were also mailed to radiologists and hospitals in Fairfield, Centralia, Olney and Effingham. Plaintiff was informed of his discharge effective November 30, 1966, by Mr. Gerber in a letter dated October 31, in which he stated he was acting upon the recommendation of the defendant.

Plaintiff then applied for the position of x-ray technician at St. Anthony's Hospital in Effingham, but was not employed. Plaintiff was unable to secure satisfactory employment as an x-ray technician and worked at a series of jobs including stock boy in a grocery store, route builder for a tea company, punch press operator, life insurance salesman and store owner.

At the request of the defendant, two special interrogatories were submitted to the jury: "Were the matters set forth in the alleged letters and memoranda substantially true?"; and "Was the defendant, Richard J. Noveroske, guilty of actual malice in publication of the alleged letters and memoranda?" The jury answered the first in the negative and the second in the affirmative. In his post-trial motion the defendant alleged repeatedly and specifically that the evidence did not establish actual malice or the falsity of the allegations. Defendant did not, however, specifically challenge the answers to the special interrogatories by name.

The plaintiff now argues that the post-trial motion was not sufficiently specific to challenge the special interrogatories in order to preserve for appeal the issue that the findings were against the manifest weight of the evidence.

• 1 It is well settled that a party is conclusively bound by an answer to a special interrogatory on a material issue unless he moves to set it aside or attacks it in his post-trial motion. (Huff v. Illinois Central R.R. Co., 4 Ill. App.3d 113, 280 N.E.2d 256 (1972); Quagliano v. Johnson, 100 Ill. App.2d 444, 241 N.E.2d 187 (1968); Biggerstaff v. New York, Chicago & St. Louis R.R. Co., 13 Ill. App.2d 85, 141 N.E.2d 72 (1957).) While it is clear that a general objection in a post-trial motion that the verdict is contrary to the manifest weight of the evidence is insufficient to preserve for review questions going to the propriety of a special finding (Voigt v. Anglo-American Provision Co., 202 Ill. 462, 66 N.E. 1054 (1903); Westlund v. Kewanee Public Service Co., 11 Ill. App.2d 10, 136 N.E.2d 263 (1956); Brimie v. Belden Manufacturing Co., 287 Ill. 11, 122 N.E. 75 (1919)), there remains some doubt as to the degree of specificity necessary to enable an objection in a post-trial motion to sufficiently challenge special findings of the jury.

In Scott v. Hernon, 3 Ill. App.3d 172, 278 N.E.2d 259 (1971), the court required a specific challenge to the special interrogatories to preserve the issue for review. A contrary result was reached in Midden v. Allstate Insurance Co., 7 Ill. App.2d 499, 129 N.E.2d 779 (1955).

In light of these two apparently conflicting appellate court decisions, this court chooses to apply the rationale of the Midden case to the case at bar. To hold that the appellant must be more specific would be to place form over substance. There is no magic in a specific reference to the jury's special findings and, as here, where the post-trial motion was couched in the language of the special interrogatories, we hold that the motion was sufficiently specific to put the trial court on notice that the special findings of the jury were being challenged.

The supreme court has recently addressed itself to this problem. In Wozniak v. Segal, 56 Ill.2d 457, 308 N.E.2d 611 (1974), the court held that a court is not bound by the failure of a party to specifically challenge a special interrogatory where substantial justice would be denied the movant. While the holding in Wozniak is not entirely clear, we read the case to overrule the previous strict pleading requirements as they relate to special interrogatories.

Defendants contend that the rule first enunciated in the now famous New York Times case precludes recovery since there was no proof that the letters and memoranda were published with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964), held that libelous publications involving public officials are constitutionally protected under the first and fourteenth amendments to the United States Constitution unless published with "actual malice" defined as publication "with knowledge that it was false or with reckless disregard of whether it was false or not."

Defendant further contends that in determining whether defendant uttered the libel with "actual malice," this court in applying the New York Times standard must consider and weigh the evidence de novo without affording any presumption or force to the jury's verdict or answer to the special interrogatories and that the scope of appellate review in libel cases is thus different from traditional appellate review where great weight is afforded the verdict as a conclusive determination of disputed factual matters.

Defendant finally contends that the proper application of the New York Times rule as it has developed precludes recovery of punitive damages.

Since the matters set forth in the allegedly libelous publications concerned the public health, that is the proper operation of a county hospital which presumably affects the well-being of the citizens of the county, the lower court ruled that the standard set forth in New York Times was applicable to the instant action. If the action were against the news media, we would have no doubt about the correctness of this ruling. (Doctors Convalescent Center, Inc. v. East Shore Newspapers, Inc., 104 Ill. App.2d 271, 244 N.E.2d 373 (1968).) However, we have reservations about the applicability of the New York Times rule to defamation actions between private citizens notwithstanding the presence of a matter of legitimate public concern or interest since we perceive the New York Times rule and its numerous subsequent refinements to involve the protection of that portion of the first amendment dealing with freedom of the press. The cases, however, do not draw this distinction in explicit terms. In fact, two cases subsequent to New York Times, Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597, 86 S.Ct. 669 (1966), and St. Amant v. Thompson, 390 U.S. 727, 20 L.Ed.2d 262, 88 S.Ct. 1323 (1968), applied New York Times to actions between private individuals, although in both cases the alleged libelous material was broadcast or printed in the news media.

• 2, 3 In any event, the parties here have agreed that the stringent requirement of the New York Times rule is applicable. The case was tried before a jury and the instructions framed in accordance with the malice test therein enunciated. In this case the distinction may be meaningless since the defendant, as supervisor of the hospital radiological department, would have had a qualified privilege as to some or all of the libelous material which would be overcome only by a showing of "common-law" malice, that is, evil motive or ill will toward the plaintiff. (Bloomfield v. Retail Credit Company, 14 Ill. App.3d 158, 302 N.E.2d 88 (1973).) In fact, the trial court in the instant case ruled that defendant's circulation of the memoranda to the members of the medical staff and the Lay Board was privileged. Thus, we are concerned solely with the circulation of the letters to the professional organizations and other hospitals.

As a threshold question, we must decide the standard to be applied in reviewing the evidence, since defendant states that the evidence at trial fails to show actual malice with "convincing clarity." While the Supreme Court of the United States has imposed upon reviewing courts a duty to examine closely the record to determine "whether it could constitutionally support a judgment" (Time, Inc. v. Pape, 401 U.S. 279, 28 L.Ed.2d 45, 91 S.Ct. 633 (1971)), this does not mean that defendant is entitled to a de novo review of trial court proceedings wherein the jury's verdict is entitled to no weight. The balance that must be struck is delicate. On the one hand, "[t]his Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied." (New York Times Co. v. Sullivan, 376 U.S. 254, 285, 11 L.Ed.2d 686, 709, 84 S.Ct. 710, 728 (1964).) On the other hand, "[w]here either result finds reasonable support in the record, it is for the jury, not for this Court, to determine whether there was knowing or reckless falsehood." Time, Inc. v. Hill, 385 U.S. 374, 394, 17 L.Ed.2d 456, 470, 87 S.Ct. 534, 545 (1967).

We believe the proper test to be that set out and discussed at length in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L.Ed.2d 296, 91 S.Ct. 1811 (1971). There the Court held that a libel judgment may be sustained only upon "clear and convincing" proof that the defamatory falsehood was published with ...

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