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Colson v. Stieg

OPINION FILED JULY 25, 1980.

JOHN CALVIN COLSON, PH.D., PLAINTIFF-APPELLANT,

v.

LEWIS STIEG, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of De Kalb County; the Hon. CARL A. SWANSON, JR., Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order of the trial court granting defendant's motion to dismiss plaintiff's amended complaint.

The defendant urged three grounds as bases for his motion to dismiss: First, under the innocent construction rule, two alleged defamatory statements were non-actionable as a matter of law; second, the statements were privileged; and third, the complaint failed properly to allege actual malice in that it failed to allege sufficient facts to support such a claim.

Plaintiff was an associate professor in the department of library sciences at Northern Illinois University who sought tenure and promotion. The suit arose as a result of statements allegedly made by the defendant, the department chairman, at meetings of the department of library science personnel committee held for the purpose of evaluating plaintiff's performance and for recommendation regarding his tenure and promotion. The amended complaint charged that at a meeting on October 3, 1977, defendant allegedly stated:

"I have information I cannot divulge which reflects adversely on John's performance as a teacher" (hereinafter referred to as statement 1).

It also charged that at a subsequent meeting on April 4, 1978, the defendant allegedly stated:

"I have counseled John many times about his teaching and the documents which would prove the counseling are missing from the department files under suspicious circumstances" (hereinafter referred to as statement 2).

• 1 Plaintiff contends that these statements are slanderous per se since statement 1 imputes to plaintiff an inability to perform the duties of his office or employment and statement 2 imputes to plaintiff the commission of a crime. It is, of course, well established that classes of words are held to be libelous per se or slanderous per se if they impute the commission of a criminal offense or the inability to perform or want of integrity in the discharge of duties of office or employment. (Catalano v. Pechous (1978), 69 Ill. App.3d 797, 805.) If the words are slanderous per se, damages are presumed; if not, slanderous words are generally actionable only upon a proper averment of special damages. Catalano v. Pechous (1978), 69 Ill. App.3d 797, 805.

Defendant asserts, however, that the application of the innocent construction rule to the statements in question would require a finding that they are not actionable as a matter of law.

The innocent construction rule applicable in defamation cases, which was enunciated by our supreme court in John v. Tribune Co. (1962), 24 Ill.2d 437, 442, cert. denied (1962), 371 U.S. 877, 9 L.Ed.2d 114, 83 S.Ct. 148, states that offending language "is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared non-actionable as a matter of law." This rule requires that the meaning of a statement be gathered not only from words singled out as libelous but also from the context in which they are used. (Sloan v. Hatton (1978), 66 Ill. App.3d 41, 43; Valentine v. North American Company for Life & Health Insurance (1973), 16 Ill. App.3d 277, 280, aff'd (1974), 60 Ill.2d 168.) The surrounding circumstances and the events that led to the utterance must be examined very closely and the words judged accordingly. (Sloan v. Hatton (1978), 66 Ill. App.3d 41, 43; Stanley v. Taylor (1972), 4 Ill. App.3d 98, 104-05, cert. denied (1972), 409 U.S. 983, 34 L.Ed.2d 247, 93 S.Ct. 321.) If the alleged defamatory matter is ambiguous or if the words are reasonably susceptible of an innocent meaning, then they will be given an innocent construction, and the rule applies to slander as well as libel. (Moricoli v. Schwartz (1977), 46 Ill. App.3d 481, 483; Roemer v. Zurich Insurance Co. (1975), 25 Ill. App.3d 606, 611.) Whether language is susceptible of an innocent construction is a question of law for the court to determine (Valentine v. North American Co. (1974), 60 Ill.2d 168, 171; Anderson v. Matz (1978), 67 Ill. App.3d 175, 178; Moricoli v. Schwartz (1977), 46 Ill. App.3d 481, 483) by reading the language "`stripped of innuendo.'" Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348.

• 2 Defendant first asserts that application of the innocent-construction rule discloses that the alleged statements were simply opinions of a department chairman concerning the performance of a candidate for tenure and are therefore non-actionable. In support of this position, he relies upon precedent established in Byars v. Kolodziej (1977), 48 Ill. App.3d 1015, and Johnson v. Board of Junior College District No. 508 (1975), 31 Ill. App.3d 270. In those cases the court applied the innocent construction rule and found that the statements were expressions of opinions or belief and not defamatory as a matter of law. In Byars, the court stated:

"It cannot be said that every expression of opinion touching on a person's capabilities or qualifications constitutes a defamation no matter how much the complained of statement may injure the subject person in his own conception." 48 Ill. App.3d 1015, 1017.

Thus, it is clear that the law of defamation does not provide redress for every expression of opinion touching on an individual's competence or ability. (Anderson v. Matz (1978), 67 Ill. App.3d 175, 178; Byars v. Kolodziej.) It is also recognized that an individual cannot be sued simply for expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it might be. Catalano v. Pechous (1978), 69 Ill. App.3d 797, 808; Hotchner v. Castillo-Puche (2d Cir. 1977), 551 F.2d 910, 913, cert. denied (1977), 434 U.S. 834, 54 L.Ed.2d 95, 98 S.Ct. 120; see Von Solbrig Memorial Hospital v. Licata (1973), 15 Ill. App.3d 1025, 1031.

Applying these principles of the innocent construction rule to the statements in question, we first conclude that the statements are factual ...


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