APPEAL from the Circuit Court of Lake County; the Hon. HENRY
CALDWELL, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Two brothers, Harry and Frank Kilbane, filed a complaint against Robert Sabonjian whereby they sought $1,000,000 damages for slander. The defendant filed a motion to strike and dismiss the complaint, supported by affidavit, based upon truth, fair comment, innocent construction, privilege, and the failure to allege special damages specifically and with particularity. In support of their complaint two affidavits were filed on plaintiffs' behalf. Following a hearing on defendant's motion the trial court entered the order from which plaintiffs appeal, dismissing their complaint with prejudice.
Plaintiffs' basic contention on appeal is that the trial court improperly dismissed their complaint on the pleadings because the issues raised by defendant's motion to dismiss present ultimate issues of fact which must be determined by a jury.
The record in this case indicates that in February, 1973 Harry Kilbane caused four articles to be published in the Waukegan News-Sun newspaper. These articles stated that they were paid for by Harry Kilbane and were variously titled "Harry Kilbane to the Taxpayers of Waukegan." The articles were run during the campaign of the defendant Sabonjian for re-election to a fifth term as mayor of the City of Waukegan and a few days prior to a primary runoff election. The articles criticized the defendant for wasting taxpayers' money and blamed the defendant for the bad sanitary sewer system in the Lake County Gardens Subdivision. The article published on February 20 alleged that the sewer problems were caused by a landfill site having been constructed in a swampy area, and that defendant was responsible for the construction of the landfill site. In their complaint plaintiffs alleged that Harry Kilbane had served the public in several capacities, including service as a member and chairman of the City of Waukegan Planning Commission.
On February 23, 1973, the defendant spoke on a radio program and made the following statement, which is the basis of the instant suit:
"Now, one of the sewer problems, sorespots of the sewer problem in the City of Waukegan I can attribute to my opponent, his very cagey campaign manager, the man who's always second-guessing every administration, the man who ran against me twice, who not I but the people of Waukegan thumped very decisively at the polls both times. I'm talking about Harry Kilbane, who happened to be the chairman of the Planning Commission for the City of Waukegan, and Harry Kilbane, I repeat, is the one that brought Lake County Gardens to Waukegan.
Harry Kilbane and his brother Frank Kilbane are the ones that sued in Federal District Court for $405,000.00 commission for finder's fee. Here's a man sitting in public office, appointed by the mayor, and going out as a real estate man, even without a real estate broker's license, and made himself a deal with Centex Corporation and got himself $405,000.00 to bring Lake County Gardens to Waukegan.
Lake County Gardens is a place that's plagued with sewers, the sewer problems, the inadequate sewers that Harry Kilbane settled out of court for 39 homes, that only last year sold 18 of his homes on Delaware Avenue which were high and dry. He didn't take any houses in Lake County Gardens Unit No. 4.
This is the same man that's running ads every day in the Waukegan News-Sun, running ads telling the people of Waukegan what's wrong with Waukegan under Bob Sabonjian for 16 years, what's wrong with downtown Waukegan. Well, ladies and gentlemen, while I'm sitting here and immediately after this program I wish you'd get in your cars and drive downtown Waukegan right by Harry Kilbane's building on North Genesee Street, just north of the Genesee Theater, the old J.C. Penney building, which Harry Kilbane hopes to attract people, tenants to come in. His building is vacant. Go look at it, see if you see inside the building through the filth on the windows, the awning hanging down in shreds. Is this how you attract people to rent buildings downtown? But he's always second-guessing everyone.
But Harry Kilbane is the guy that made $405,000.00 on Lake County Gardens where the sewers are."
On April 3, 1973, plaintiffs filed their complaint seeking damages for defamation.
In his affidavit in support of his motion to dismiss, defendant stated that the statement complained of was true and in support thereof defendant attached certain exhibits. The exhibits indicated that the plaintiffs did, in fact, file suit in Federal District Court seeking to recover $405,000 as their share of a joint venture for establishing the Lake County Gardens project in Waukegan. The exhibits further showed that an order was entered by the Federal District Court, pursuant to a stipulation, granting plaintiffs 39 lots in the subdivision. The defendant's affidavit further stated that on and prior to February 23, 1973, Harry Kilbane was in fact the campaign manager of defendant's opponent in a political primary election for the office of mayor. The affidavit also alleged that defendant's statements were made for the purpose of informing the electorate of a matter of public interest, namely sewer problems in the city area, and further to correct any false impressions which might have been caused by the series of articles referred to above.
In support of their complaint, plaintiffs filed the affidavit of Harry Kilbane and John Balen, the political primary candidate for mayor. The substance of the Balen affidavit was that Harry Kilbane was not connected with the Balen campaign at any time during his candidacy for office. The affidavit of Harry Kilbane, in addition to realleging the averments of the Balen affidavit, alleged that the defendant's statements were not true in that the intended meaning was to show that Harry Kilbane had used his office for personal gain and to breach his public interest. Harry Kilbane further stated in his affidavit that defendant's statements went beyond fair criticism to malicious and personal attacks on him.
Following a hearing on the motion to dismiss and the supporting affidavits and exhibits, the trial court dismissed plaintiff's complaint ...