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Beresky v. Teschner

OPINION FILED OCTOBER 10, 1978.

THOMAS P. BERESKY ET AL., PLAINTIFFS-APPELLANTS,

v.

J. PETER TESCHNER, D/B/A "THE DOINGS", DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Thomas and Daphne Beresky brought suit against defendant, J. Peter Teschner, d/b/a "The Doings", a weekly newspaper, following the publication of a series of articles in "The Doings" of which Teschner is the owner and publisher. Plaintiffs' amended complaint was in four counts: count I, libel; count II, intentional infliction of mental distress; count III, negligent infliction of mental distress; and count IV, invasion of privacy. The trial court dismissed all four counts and denied plaintiffs leave to file any amended counts to their amended complaint. Plaintiffs appeal the dismissal of counts I, II and IV of their amended complaint, and the denial of leave to amend those counts. Plaintiffs have not appealed the dismissal of count III.

The initial article of the series which forms the basis of this suit appeared in the October 23, 1975, issue of "The Doings." The article reported the death of Cary Beresky, the 18-year-old son of the plaintiffs, from an apparent drug overdose. According to the article, Cary was a fugitive from the law having failed to appear in court on a charge of unlawful possession of a hypodermic needle allegedly used for shooting up heroin and that since his 18th birthday he had been arrested on charges ranging from traffic violations to burglary. The article also stated that a reliable source had told "The Doings" that Cary was reportedly a major seller and user of heroin in Hinsdale.

The October 30, 1975, issue of "The Doings" carried four letters to the editor, all highly critical of the newspaper for publishing such an article and expressing sympathy towards plaintiffs and their family. The November 6, 1975, issue carried another letter to the editor, again critical of the newspaper and expressing sympathy for plaintiffs; this letter mentioned Mrs. Beresky by name and stated that she had recently undergone extensive surgery for cancer. That issue also carried an editorial responding to the criticisms expressed in the letters to the editor. The issue of November 13, 1975, carried an editorial again responding to the criticism leveled at the newspaper for publishing the October 23, 1975, article. Finally, the January 1, 1976, issue contained a synopsis of the news events which had occurred in the community in 1975; one of those mentioned was Cary Beresky's death from an apparent drug overdose.

Plaintiffs contend on appeal that the trial court erred in dismissing counts I, II, and IV of their amended complaint; that the trial court deprived plaintiffs of their right to have a jury determination of whether the facts supported the allegations of each count; and that the trial court abused its discretion in denying plaintiffs leave to file amended counts to their amended complaint.

In dismissing count I (libel), the trial court found that the plaintiffs had failed to allege that any false and defamatory words were written "of and concerning plaintiffs." The plaintiffs contend that the original article, the letters to the editor and the editorial responses referred to the family of Cary Beresky and thereby to plaintiffs and that the members of the community understood the articles to refer to plaintiffs — one of the letters to the editor referred to Mrs. Beresky by name. Plaintiffs also contend that third parties understood the words of the articles to mean that plaintiffs knew or had knowledge of, condoned or participated in the illegal drug activities of their son, and that the trial court erred in denying plaintiffs the opportunity to present proof of their contentions to the jury.

• 1 We agree with plaintiffs that under Illinois law a publication may constitute a libel against an individual without mentioning him by name so long as it appears that some third party reasonably understood the writing to have referred to that individual. (Algozino v. Welch Fruit Products Co. (1951), 345 Ill. App. 135, 102 N.E.2d 555.) However, whether an article was in fact understood by readers to refer to plaintiffs might ultimately be a question for the jury, the preliminary determination whether the article is capable of being so understood is a question of law. Troman v. Wood (1975), 62 Ill.2d 184, 189, 340 N.E.2d 292, 294.

In Troman, a newspaper article appeared related to a series of burglaries and other criminal activities by a gang of youths in an area of Chicago. One edition of the newspaper carried a photograph of the plaintiff's home with a caption "Home of Mrs. Mary Troman at [address], Thomas Troman testified that he is a member of the gang." Further, the article quoted a local resident as referring to plaintiff's house as the gang headquarters and that his stolen TV set was in the basement. Plaintiff contended that the article and picture, when taken together, were understood by readers as meaning that plaintiff's house served as headquarters for the gang and that plaintiff was in some manner associated with the gang. Our supreme court held that if the article were read as meaning that plaintiff allowed her house to be used as a headquarters for persons engaging in criminal acts or for storage of stolen goods, it could hardly be doubted that her reputation would be injured. Whether the article was in fact so understood was a question for the jury.

Plaintiffs here submit that because the article, letters and editorial published by the defendant gave the address of plaintiffs' home as Cary's place of residence and referred to plaintiffs' family, particularly Mrs. Beresky, by name, their reputations have been injured by the imputation that certain illicit drug activities occurred at plaintiffs' home and that plaintiffs were associated with the alleged criminal activity of their son, either by having knowledge of, condoning or actually participating in such activity.

As expressed in its written memorandum in this case, the trial court was of the opinion that the facts of the present case are clearly distinguishable from those in Troman. First, the allegations clearly show that the alleged defamatory words, i.e., the alleged drug activity, referred only to Cary Beresky and not to the plaintiffs. Secondly, a review of the facts in Troman reveal that the innuendo there clearly referred to activities at and inside the plaintiff's home, while no such innuendo as to plaintiffs or their home is apparent in this case. By no stretch of the imagination does the mere mention of plaintiffs' address and the references to plaintiffs' family in the letters to the editor (not the article) conjure up visions of plaintiffs' residence being used as the headquarters of a "family drug business" or even condonation of Cary Beresky's alleged involvement with drugs.

• 2 Since the preliminary determination whether the articles are capable of being understood as referring to plaintiffs was properly resolved in defendant's favor by the trial court, no question remains for the jury to decide on this issue. (Troman v. Wood.) We therefore affirm the trial court's dismissal of count I. In passing, we note that the briefs of both parties contain arguments on the issue of "actual malice." However, in view of our disposition of count I, we need not discuss those arguments.

• 3 Turning to count II, while agreeing with plaintiffs that Illinois recognizes a cause of action under the theory of intentional infliction of mental distress (see Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157), the trial court concluded that the amended complaint in this case failed to contain any allegations of facts to support such a cause of action.

In Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 360 N.E.2d 765, our supreme court recently delineated the conduct which gives rise to a cause of action on this theory, stating as follows:

"First, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. `* * * Liability has been found only where the conduct has been so outrageous in character, and so extreme in ...


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