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Durso v. Lyle Stuart

OCTOBER 22, 1975.

THOMAS J. DURSO, PLAINTIFF-APPELLEE,

v.

LYLE STUART, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Thomas J. Durso, filed his complaint for libel in the Circuit Court of Cook County on September 30, 1969, against Ovid Demaris, the author of a book entitled Captive City, and Lyle Stuart, Inc., the publisher of the book. On October 12, 1973, a jury awarded the plaintiff compensatory damages in the amount of $3000 and punitive damages in the amount of $10,000 against both defendants. A special interrogatory inquiring whether the defendants were actuated by actual malice was answered in the affirmative by the jury.

The issue for review is whether there was clear and convincing evidence to support the jury verdict finding the defendants guilty of "actual malice."

Captive City purports to be an expose of an alliance between organized crime and politics and business in the City of Chicago. One of the figures in the 366-page book which is packed with names is Thomas N. Durso, a former Chicago policeman, who was convicted of murdering one "Lover" Moschiano, a syndicate narcotics operator, who had been revealed as a police informant. In the chapter immediately following the vivid portrayal of this murder, the author focused his attention on Thomas Keane, an alderman in the City of Chicago. In the last paragraph of this one-and-a-half page subchapter on Keane, Demaris concluded:

"In the immediate excitement following Gross' murder, Keane was assigned a police bodyguard, identified in a news story as Thomas Durso. This was the same Durso who was linked to the Narcotics Branch of the Syndicate in 1964, and convicted for the brutal knife slaying of police informer Anthony `Lover' Moschiano."

This statement is false. The Thomas Durso assigned as Keane's bodyguard was Thomas J. Durso. He was a Chicago policeman who was not in narcotics traffic, was not linked to the Syndicate and was not convicted of the murder of Moschiano.

The defendants admit there was an error, but assert that the author intended to insert the word "not" in the phrase in order to distinguish between the two men. Demaris stated at trial that the reason he included the name of Thomas Durso, bodyguard, was because he had the name and sought to name actual people to give the book a sense of reality.

Demaris further stated he did not know how the word "not" was omitted: "I assume the error, wherever it was made, was made between the manuscript and the galley; or I did it, I don't know." He testified that even though he proofread the manuscript seven or eight times and the galley proofs and page proofs two to three times each, he always read the word "not" into the sentence even though it was not there. The index prepared by the publisher did not distinguish between the two men.

Demaris testified he knew there were two men by the name of Thomas Durso because he was aware that Thomas N. Durso had come on the police force in 1955, but Thomas J. Durso had been assigned as a bodyguard to Alderman Keane in 1952. The only documentation or reference to Thomas J. Durso was a single story in the Chicago Tribune.

Lyle Stuart, Inc., the publisher of the book, had no knowledge of the truth or falsity of the statement regarding the plaintiff and did not perform any investigation of the statement. They relied on the investigation of the author and on the investigation of Prentice-Hall, another publisher which ultimately rejected the book after going so far as to set the type for printing. Several other publishers had also rejected the book.

There were three printings of the book, all in 1969, before the filing of the lawsuit, but books continued to be sold through 1972. A total of 17,200 copies of the hardback edition of Captive City were sold in the United States.

Thomas J. Durso was never contacted by anyone on behalf of Lyle Stuart or Ovid Demaris regarding the publication of his name in the book, and he never received an apology from anyone. Demaris testified he wanted an insert to be placed in the unsold books, but it was impossible.

In the paperback edition of the book published by Pocket Books, a subsidiary of Simon & Schuster, certain changes were made including the insertion of the word "not" in the paragraph in question.

Thomas J. Durso left the Chicago police force in 1963, and has been living in California since then. He returned to Chicago for a visit in 1969, and while at City Hall, he was teased about the reference in the book. His brother knew about the book and told him he was in it, and his nephew in California also saw it. He stated he was unaware of anyone else ...


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